Opinion | Two Americas After the Fall of Roe

On Friday, the Supreme Court in Dobbs v. Jackson Women’s Health Organization overturned its landmark abortion decisions in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), which established a constitutional right to abortion before fetal viability. Reversing a half-century of precedent, it is the first time the Supreme Court has withdrawn a right that Americans have relied upon. The unprecedented leaked opinion and the blatant disregard for well-settled precedent undermines the Court’s legitimacy and the public’s trust in its impartiality.

Justice Samuel Alito, writing for the majority, held the Constitution neither explicitly or implicitly protects the right to abortion. Alito argued that the right to privacy is not “deeply rooted” in the country’s history and not essential to “ordered liberty.” Using a constrained constitutional interpretation, he went back to 1868 when the 14th amendment was adopted, saying abortion was a crime in most states. But at the time, women also could not vote and had little voice.

Justice Alito also stressed that abortion should be left “to the people and their elected representatives.” In other words, states now have the power to protect, ban, or regulate access to abortion, with vast geographic variability. Abortion rights and access will depend entirely on where a person lives.

With the fall of Roe and rise of highly variable laws, the emerging reality of “Two Americas” will only become more evident, as women in about half the country face severe health consequences and health professionals navigate the major erosion of the doctor-patient relationship.

Abortion in a Post-Roe World

Roughly half of all states have already banned or are poised to ban nearly all abortions. Some abortion bans offer no exception for rape, incest, or nonfatal health risks. More than half of women of reproductive age (58%) are likely to lose the right to abortion. Some women may access abortion medication through telehealth appointments or the internet. Others will have to travel hundreds of miles to receive abortion care. Many will be unable to receive abortion services altogether due to hardships that prevent women from traveling long distances, including taking time off from work, finding childcare, and covering travel costs.

Almost a third of all states have laws explicitly protecting the right to abortion — four throughout pregnancy and 12 prior to fetal viability. Some states have enhanced access by requiring health plans to cover abortion or provide state funds, expanding physician eligibility to provide abortions, and protecting pregnant women and those who assist them from legal actions. In short, while many states are criminalizing abortions, others are declaring themselves abortion sanctuaries. The cultural and geographic divisions in America aren’t going away.

Health Professionals

Bans in roughly half of all states subject health professionals to a range of penalties, including large fines (up to $10,000) or suspension of medical licenses. More concerning for health professionals, however, are the lengthy prison sentences. Texas can enforce a maximum penalty of life imprisonment, and 11 other states would impose penalties of up to 10 to 15 years.

Threats of prosecution will have a profound effect on the physician-patient relationship. While even the most extreme abortion bans include exceptions for the pregnant woman’s life, some do not include nonfatal risks. The line between the risks to health and life is often gray in practice, leaving health professionals to potentially face harsh penalties. It is often unclear what exactly “lifesaving” means. What does the risk of death have to be, and how imminent must it be?

Moreover, abortion and miscarriage are often clinically indistinguishable. Over 1 million women experience miscarriage each year. Many women require treatments to avoid complications that threaten their health or lives, which can include treatments used for abortion care. Given the overlap in presentation of and treatment for abortion and miscarriage, many health professionals may hesitate to treat or stop treating pregnancy loss altogether.

Health professionals may be forced to make agonizing choices, between upholding their ethical obligations and following the law. They may also be caught between conflicting legal obligations, as many states have laws prohibiting health professionals from abandoning their patients. The federal Emergency Medical Treatment and Labor Act (EMTALA) requires hospitals that offer emergency services to provide a medical screening and treatment, including active labor.

Training for health providers in states with abortion bans will also change, with far fewer opportunities to learn “non-lifesaving” abortion care or even miscarriage management. An important predictor of a physician’s ability to provide the full range of miscarriage-management options is having had abortion care training as a resident. The resulting shrinking workforce for abortion and pregnancy loss services could have far-reaching consequences for maternal and infant health outcomes. Health professionals may also be unable to counsel patients honestly.

Women

As the dissenting opinion observes, the reversal of Roe and Casey will have “life-altering consequences.” Abortion bans will result in negative physical health outcomes for women who are delayed in accessing abortion services or unable to access them altogether. Delaying abortions beyond the first trimester significantly increases health risks. Women who have difficulty accessing safe, legal abortions may turn to unsafe, clandestine abortions without expert medical oversight. For some women, pregnancy and childbirth can result in life-altering health problems or even death. Women also face challenges to their mental health and emotional well-being, as they are forced to choose between an unsafe abortion or carrying an unwanted pregnancy to term. Women fearing legal consequences as they weigh their options may hide their pregnancies and avoid prenatal care. That, in turn, risks the health of newborns.

Equity

While women’s health and bodily integrity are prominent concerns, equity and justice are also at stake. Abortion bans will disproportionately affect underserved and marginalized women, including those living in poverty or rural areas, those from ethnic and racial minority groups, young individuals, the undocumented, and those who experience intimate partner violence.

Women living below the poverty line experience unintended pregnancies at rates five times higher than higher-income women, and approximately 75% of women who have abortions have incomes near or below the federal poverty line. Women who have abortions also disproportionately work in jobs with low wages and little flexibility. Medicaid recipients, which includes 19% of all women of reproductive age, must pay out of pocket because federal funding of abortion is prohibited under the Hyde Amendment.

Most patients seeking abortion services are from ethnic and racial minority groups: an estimated 81% in Mississippi, 79% in Georgia, and 75% in Texas. They are already more likely to lack health insurance. Bans on abortion would likely increase pregnancy-related deaths, and Black women are three times more likely than White women to die of pregnancy-related causes.

Young adults and adolescents, who are less likely to have a steady source of income, account for 72% of patients who seek abortion services. Survivors of intimate partner violence, which affects nearly 1 in 3 women, experience disproportionately high rates of forced pregnancy. They also encounter barriers to abortion services due to abusive partners.

We are seeing “Two Americas,” one where abortions are fully protected and one where they are criminalized. And the exercise of a constitutional right once held dear will depend fundamentally on whether a woman has the means to travel for reproductive health services.

Other Rights Are at Stake

Justice Alito wrote, “we emphasize that our decision concerns the constitutional right to abortion and no other right.” But the entire edifice of privacy rights is built on the right to due process under the 14th amendment. Rights to contraception, same-sex marriage, and same-sex intimacy rest on that right to privacy. And none of those rights were deeply rooted in the nation’s history, dating back to 1868. Justice Clarence Thomas, in his concurrence, said as much: “We have a duty to correct the errors in those precedents.” Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in dissent put it even more bluntly: “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

Lawrence O. Gostin, JD, is a University Professor, Georgetown University’s highest academic rank, where he directs the O’Neill Institute for National & Global Health Law. He is also director of the World Health Organization Collaborating Center on National & Global Health Law. He is the author of the book, Global Health Security: A Blueprint for the Future. Rebecca Reingold, JD, is Associate Director of the Health and Human Rights Initiative at the O’Neill Institute for National and Global Health Law.