Special Episode: Abortion Rights in the USA

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In light of this week’s events, Fei and Nick sit down to talk through abortion rights in the US and evaluate the place of abortion as healthcare in the US.

The Current State of Abortion in the USA

  • Earlier this week: leaked Supreme Court document to overturn Roe v. Wade 

    • If you have not: https://www.politico.com/news/2022/05/02/supreme-court-abortion-draft-opinion-00029473

    • Just so we are clear, this does not mean that Roe V. Wade is overturned 

      • Per Politico: “Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.” 

  • Roe V Wade has not yet been overturned, so in the US, technically abortion is still legal 

Where Things Stand if Roe is Overturned

  • There are multiple states that have restrictions in some way or other. So for example, only 6 states have no restrictions on abortion: 

    • Oregon, Colorado, New Mexico, New Jersey, Vermont and New Hampshire 

    • Most states have limitations at viability, and certain states have limitations at 24-25 weeks

      • 24-25 week limitation: Nevada, PA, FL, Massachusetts, and Virginia 

      • Still others state “viability” but individual institutions limit the gestational ages, effectively making the limitation less than viability (AHEM RI, Women and Infants ← don’t have to actually call them out)  

    •  Some states have 22 week limits (North Dakota, South Dakota, Nebraska, Kansas, Oklahoma, Iowa, Wisconsin, Indiana, Ohio, West Virginia, Georgia, South Carolina, Alabama, Louisiana, Arkansas 

    • Others have limitation at 15 or 20 weeks (Mississipi, Kentucky) 

    • Most restrictive: Texas, at 6 weeks 

  • And still more restrictions exist beyond gestational age:

    • In the setting of minors, parental consent or inform laws exist for all but 7 states 

    • There is also a mandatory waiting period for 24 hours or more in 24 states 

    • State constitutional protection of abortion exist in only 14 states 

    • No government funding for abortion (US government insurance will not fund it) 

      • First trimester abortions can cost $500-$1000 out of pocket 

  • Currently, should Roe v. Wade get overturned, legislatures in 22 states said they would move to ban or further restrict abortion laws 

US Case Law Regarding Abortion Rights

  • Roe V. Wade (1973)

    • Court case involving Norma McCorvey (Jane Roe) who became pregnant in 1969 with her third child 

    • She could not have an abortion as she wanted because in Texas it was illegal 

    • Her attorneys filed a lawsuit on her behalf in the US federal court, alleging that the Texas abortion laws were unconstitutional

    • The US District Court ruled in her favor and the state appealed to the Supreme Court 

    • In 1973, the Supreme Court Ruled in a 7-2 decision that per the Due Process Clause of the Fourteenth Amendment, this provides a “right to privacy” that protects a woman’s right to choose 

    • However, there were clauses: 

      • Right is not absolute and must be balanced against governments’ interests in protecting women’s health and prenatal life 

      • Tied state regulation to the three trimesters of pregnancy: during first trimester, government could not prohibit abortion at all; second trimester, government could require reasonable health regulations; during third trimester, abortion could be prohibited entirely so long as the laws contained exceptions for cases when they were necessary to save the life or health of the mother 

    • What this means: yes, abortion was now legal, but it left a lot up for interpretation 

      • States could still enact other provisions that would make it difficult to get an abortion (ie. long waiting periods, informed consent laws, spousal or parental consent) 

  • Planned Parenthood vs. Casey (1992) 

    • Another landmark trial where the Court upheld the right to have an abortion that was established in Roe v. Wade 

    • The case arose from a challenge to 5 provisions of the Pennsylvania Abortion Control Act of 1982

      • The provisions included (not limited to) requirements for waiting period unless there was a “medical emergency,” spousal notice, and parental consent for minors (other two were informed consent and reporting requirements or record keeping for abortion service facilities) 

    • The court upheld Roe and also overturned the original trimester framework in favor a viability analysis  

      • While this is typically seen at 24 weeks, but since Casey, states have enacted laws to restrict abortion, including abortions earlier than the general standard of 24 weeks 

      • Also replaced the strict scrutiny standard of review required by Roe with the “undue burden” standard, under which abortion restrictions would be unconstitutional when they were enacted for “the purpose or effect of placing a substancial obstacle in the path of a woman seeking an abortion of a nonviable fetus” 

      • The court upheld 4 provisions of the PA law, but invalidated the requirement of the spousal notification 

  • Dobbs v. Jackson Women’s Health Organization (2022)

    • Pending US supreme court case dealing with the constitutionality of the 2018 Mississippi state law that bans abortions after 15 weeks 

    • In March 2018, Mississippi passed the Gestational Age Act 

    • Within a day, the remaining abortion clinic in MS (Jackson Women’s Health Organization) sued the state challenging the constitutionality of the bill 

    • In the district court for southern MS, the judge ruled for the clinic and placed an injunction on the state enjoining them from enforcing the Act 

    • State appealed to the Fifth Circuit → upheld the judge’s ruling

    • The state then petitioned their act to the Supreme Court in June 2020 - case was heard on December 2021

    • Which then leads us to our leaked Politico draft that appears to overturn Roe v. Wade on May 2, 2022! 

What about other countries / guidelines?

  • WHO guidelines - recently updated on 3/9/2022: https://srhr.org/abortioncare/

    • It’s very long, but some important points as below: 

      • WHO recommends against mandatory waiting periods

      • Recommend that abortion be available on request of the woman/pregnant person without authorization of any other individual, body, or institution 

      • Recommend against laws and other regulations that prohibit abortion based on gestational age limits 

      • Recommend the full decriminalization of abortion

      • Recommend against the use of ultrasound scanning as a prerequisite for providing abortion services 

  • Other countries

    • Canada - no laws or restrictions regulating abortion

    • In most countries (other than the US and Australia) - right to abortion has been legalized by respective parliament/government instead of by state 

    • Legal in all European nations, though some gestational age limits apply 

      • Usually up to 16 weeks

Why is abortion healthcare? 

  • Abortion History in the US 

    •  1973 - Roe V. Wade; abortion is a constitutional right 

      • Three years later: Hyde Amendment; block federal funds from being used to pay for abortion outside of narrow scope of rape, incest, or life endangerment 

    • Prior to this: 

      • Until the early 1800s, abortion was legal until “quickening” 

      • Shift toward banning abortion was born from racism, misogyny, and desire to control pregnant people’s bodies

        • In mid 1800s: US shifted toward criminalizing abortion 

        • Black midwives and healers were condemned for performing abortions and care of pregnant people 

        • Motivated potentially by declining birthrates of white Protestant American women in the 1800s and increased migration 

Safe Abortion Care and Why It is Needed

  • It will occur whether or not it is prohibited

    • The Guttmacher Institute reports that in 2017 the abortion rate in countries that prohibit or limit abortion was 37/1000 people and the abortion rate was 34/1000 people in countries that broadly allow for abortion 

    • Unsafe abortion leads to 4.7-13.2% of maternal deaths  

  • Most abortions occur early on and is safe when there is good healthcare

    • According to the CDC, in 2016, 65.5% of abortions occurred at 8 weeks or less 

    • 91% occured before 13 weeks  

    • Only 1.2% of abortions are performed at 21 weeks or later 

  • For ways that abortions are done: look at our previous abortion episodes

  • Abortions are safer than pregnancy

    • Risk of death from abortion is <1/100,000; risk of dying in childbirth is 14xgreater than risk of dying from an early abortion 

    • Complications from medication abortion is <1% of patients 

    • Rate of complication in surgical abortion is 0.5-4% 

    • It does not increase your risk of future cancer and does not decrease your fertility

  • Who gets abortions?

    • Guttmacher Institute in 2014: 

      • 39% white, 28% black, 25% LatinX 6% Asian/PI, 3% other  

      • So the demographic is everyone 

    •  In addition:

      • 62% identified as religiously affiliated

      • 59% were people that had children 

      • 60% were people in their 20s  

    • Reasons for abortions

      • 74% state that having a child would interfere with education, work, or ability to care for dependents (so abortions decrease the risk that someone becomes unable to work, relies on the state for welfare – this is what conservatives want right??  ← don’t have to say this … it’s just my rage) 

      • 73% could not afford a baby (again, that person is being fiscally smart!) 

  • It is hard to get access to abortion care already, even in “liberal” states 

    • Among women seeking care for abortion in California, 11.9% traveled 50 miles or more 

    • Especially those who seek second trimester abortions or who live in rural areas 

    • One study of 6022 telemed requests: 76% of requests were from states with hostile restrictions

      • However, 60% reported a combination of barriers to clinic access and preference for self-management for privacy and convenience 

    • Why is this important to know? 

      • There are inevitably those that cannot travel 50 miles or more (and this is Cailfornia!) 

      • There are those who do not have $500-$1000 lying around for abortion 

      • What this means is that right now, safe, legal abortion is effectively unattainable for those people who are poor or do not have resources 

      • By further restricting abortion laws, we are going to inevitably make things worse for those who do not have resources (people with money and resources will always be able to get abortions) 

Call to Action: Based off the ACOG CO 815 Increasing Access to Abortion

  • The Hyde amendment and any law that restrict public or private insurance coverage of abortion should be eliminated 

  • There should not be undue barriers that restrict access to abortion including but not limited to: 

    • Bans by gestational age 

    • Requirements that only a physician or an Ob/Gyn give abortion care 

    • Telemedicine bans 

    • Restrictions on medication abortions (including mailing medication through the USPS) 

    • Requirement for mandatory counseling

    • Waiting periods before abortion 

    • Ultrasound requirements 

    • Mandatory parental consent/informing of parents 

    • Mandatory spousal consent or informing of spouse 

    • Faciliy and staffing requirements as outlined in the Targeted REgulations of Abortion Providers (TRAP) laws 

  • Ob/Gyn and family medicine practices will have opt-out abortion training for medical student, resident, and advanced-practice clinicians, and government funding will be ensured for these programs 

  • Obtaining an abortion or aiding another to obtain an abortion, or providing an abortion should not be considered criminal activities

  • Institutions should see abortion as healthcare and support it as such 

  • Any decision for abortion and method of abortion should be between the patient and her healthcare provider, and not be dictated by the government, healthcare facility, or ability to pay for abortion  

What can you do to help?

  • VOTE! 

  • Talk to your institutions – see if they will make a commitment to keeping abortion care as part of their practice 

  • Call your representatives

    • We know that you are all from different places, but we are especially talking to folks from the United States 

    • Find your senators here: https://www.senate.gov/senators/senators-contact.htm

    • Find your representatives here: https://www.house.gov/representatives

    • Let them know you are a constituent 

    • Here is a brief script from the ACLU that you can use. Know that there are Democratic Senators that are now working on protecting abortion rights, but there is nothing written/official as of yet 

      • Hi, my name is [SAY YOUR NAME] and my zip code is [SAY YOUR ZIP CODE]. [If you’d like, you can say that you are a physician, medical student, PA, healthcare provider of any type, etc.] I’m a constituent of [SAY SENATORS’ NAME] and I’m calling to urge the senator/representative to work with others to help codify abortion rights into law. 

  • Donate or volunteer for your local Planned Parenthood

  • Donate to the ACLU and join their mailing list: 

  • Familiarize yourself further with your state (and neighboring states’) laws and regulations for abortion via the Guttmacher institute 

  • Other things 

  • As a provider 

    • If you march, make sure to protect yourselves 

      • How to protest/attend a rally/march successfully 

        • Research what others are saying about the event/rally - is it safe to go? Will there likely be counterprotesters? Could things end with violence? 

        • Try not to go alone (esp if you are female, trans, BIPOC) - it’s safer to go in a group 

        • Wear a mask

        • Bring a pack and have with you water and snacks, medications, phone, phone charger and other essentials you may need (ie. pads, tampons, bandaids) 

        • Make sure your phone is only unlockable by password (police cannot force you to unlock, but they can unlock it with your face or fingerprint against your will) 

          • Consider turning it onto airplane mode while protesting 

        • Wear comfortable, close-toed shoes 

        • Write emergency contact information or emergency legal counsel numbers on your arm in permanent marker 

        • Stay vigilant. If arrested, demand legal representation before speaking to the police 

    • If you want to be seen in your white coats, that is ok, but make sure you are safe and go in a group 

      • If you don’t want to be recognized, make sure to wear your mask/goggles, cover tattoos that are recognizable.  

    • Educate your patients and hear what they have to say 

    • Prescribe refills on birth control pills, patches, contraceptive rings, etc. 

    • Place LARCs as desired by your patients 

    • Prescribe emergency contraception and tell patients to pick them up and keep it with them 

    • Compile a list of providers/places that provide abortion services and make them readily accessible to patient if they desire them