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Toolkit: Reproductive Health -- The Impact of the U.S. Supreme Court Striking Down Roe v. Wade

Published: 10/3/2022

ACP calls for respect for the principle of patient autonomy and supports ensuring access for all patients to the full range of reproductive health care services, including abortion, and believes that such reproductive health care decisions are foundational to the patient-physician relationship. A patient’s decision about whether to continue a pregnancy should be a private decision made in consultation with a physician or other health care professional, without interference from the government. ACP strongly opposes medically unnecessary government restrictions on any health care services, and has joined with over 75 health care organizations to oppose such legislative interference.

ACTION:

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ACP encourages members to advocate with state officials to restore and protect access to abortion services under state law and oppose interference with the patient-physician relationship. ACP Members who wish to engage can use the following customizable sample letters based on your state’s circumstances.  Any questions or request for assistance should be submitted to ACP National using the Advocacy Assistance Request Form.

  • Letter One - For individuals in states currently enforcing an abortion ban
  • Letter Two - For individuals in states considering additional abortion restrictions
  • Letter Three - For individuals in states with neither an abortion ban nor statutory protection
  • Letter Four - For individuals in states that have already protected abortion in state law

Background

On June 24, 2022, the U.S. Supreme Court overturned Roe v. Wade, the landmark 1973 case that guaranteed the federal right to abortion services in this country.  The court’s decision in Dobbs v. Jackson Women’s Health Organization states that “the Constitution does not confer a right to abortion; Roe and [Planned Parenthood v.] Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.”

This decision to overturn Roe v. Wade represents a monumental setback to reproductive rights, not only restricting access to abortion services but also jeopardizing access to other related services, such as contraception or fertility treatments in some states.  Its implications could further threaten constitutional privacy protections, criminalize the provision of abortion-related services, and do irreparable harm to the patient-physician relationship.  As a result of the decision, abortion access will be severely curtailed or entirely banned in 26 states and other states are likely to pass similarly restrictive policies now that the federal protections have been eliminated.  

ACP strongly condemned the court’s decision in a statement issued on June 24 and also joined with four other medical specialty organizations in opposing this decision.

Actions on the Federal Level

At present, there is no clear legislative path in Congress to protect abortion rights at the federal level, though lawmakers will likely continue making attempts to pass legislation in the coming weeks and months that will be largely symbolic.  ACP has advocated vigorously for federal legislation protecting reproductive rights, including H.R. 3755/S. 4132, the Women’s Health Protection Act, which would codify abortion rights under federal law but does not have the support it needs to pass the U.S. Senate. ACP also supported a modified version of the Women’s Health Protection Act, H.R. 8296, that was passed by the U.S. House subsequent to the Court’s decision to overturn Roe v. Wade. Unfortunately, this legislation does not have the necessary support to pass in the U.S. Senate.  Other actions on the federal level have included:

  • Lawmakers Petition Biden Administration: On June 7, 25 Senators wrote to President Biden urging him to use executive authority to protect abortion access, including expanding access to medication abortion, clarifying privacy rights in digital security, and using federal resources and property to facilitate abortion care.
  • Administration Guidance on HIPAA & Reproductive Health Information Disclosure: On June 29, 2022, the Office of Civil Rights (OCR) of the US Department of Health and Human Services (HHS) released guidance for disclosures of information relating to reproductive health care in the context of the Health Insurance Portability and Accountability Act (HIPAA).  See ACP’s 2021 paper on Health Information Privacy, Protection, and Use in the Expanding Digital Health Ecosystem.
  • President Biden Signs Executive Orders: On July 8 and August 3, the president signed two executive orders directing HHS and other federal departments to take steps to protect access reproductive health care services. The July order’s provisions include protecting access to medication abortion and contraception, promoting patient privacy rights, and establishing an Interagency task force to coordinate the federal response. See ACP’s reaction to that order here. The August order directed HHS to consider increasing access to reproductive health services under Medicaid for patients who must travel out of state, apply federal non-discrimination laws to prevent delays in accessing medically necessary care, and improve maternal health data collection. ACP’s statement in response to the August order can be found here.
  • New EMTALA Guidance Released: On July 11, HHS announced new guidance noting that under the 1986 federal Emergency Medical Treatment and Labor Act (EMTALA) patients have the right to emergency medical care, including abortion in medical emergencies, and that federal law preempts any state abortion bans that do not make exceptions for the life of the patient.  It remains unclear exactly what protections this action will offer patients and clinicians, particularly from criminal liability, as legal challenges are ongoing.
  • New Guidance for Retail Pharmacies: On July 13, 2022, OCR released guidance to retail pharmacies clarifying that if they participate in Medicare or Medicaid, they are prohibited from denying an individual a benefit under their health plan on the basis of sex or disability, including with regards to supplying medications, or advising a patient regarding the suitability of medication or how to take them.  The guidance follows cases of pharmacies refusing to fill prescriptions for abortion pills and other medications, such as methotrexate, that could possibly used for abortion.

Given current limitations on the federal level, the battle for abortion rights will shift mainly to the states where we expect a groundswell of activity.  Action to further restrict abortion-related services or protect access to such services will vary on a state-by-state basis.  ACP has identified the following trends and will continue to monitor developments as they occur.

State Trends to Restrict Abortion Services

22 states have laws that could be used to restrict the legal status of abortion.

  • 7 states retain their unenforced, pre-Roe abortion bans.
  • 13 states have post-Roe laws to ban all or nearly all abortions that are now triggered with the overturning of Roe v. Wade.   
  • 7 states have laws that express the intent to restrict the right to legal abortion to the maximum extent permitted by the U.S. Supreme Court in the absence of Roe.
  • 4 states have passed a constitutional amendment explicitly declaring that their constitution does not secure or protect the right to abortion or allow use of public funds for abortion.

State Trends to Protect Abortion Services

16 states and the District of Columbia have laws that protect the right to abortion.

  • 4 states and the District of Columbia have codified the right to abortion throughout pregnancy without state interference.
  • 12 states explicitly permit abortion prior to viability or when necessary to protect the life or health of the pregnant person.

These state trends are documented in this chart created by the Guttmacher Institute, which presents the diverse landscape of activity, reflective of the trends above, that could occur on a state-by-state basis in the days and months ahead, if not already triggered because of the Court’s decision.  

Other Potential Implications of the Court’s Decision

  • Increasing criminalization of reproductive health care for both patients and physicians.  In many states, abortion bans include severe criminal penalties for patients and/or health care professionals who perform or assist in the performing of abortion.   In Texas, for example, the state’s trigger law makes it a first-degree felony punishable by life in prison and a $10,000 fine for a physician to provide an abortion.  Investigations threaten the patient-physician relationship as patients can be compelled to testify against physicians and vice versa and physicians will face criminal, civil, and/or professional penalties for providing evidence-based care. A 2021 report from the National Association of Criminal Defense Lawyers predicted that “a Supreme Court decision overturning Roe v. Wade will lead to rampant overcriminalization through regulatory enforcement and to mass incarceration on an unprecedented scale,” as states dramatically expand the scope of criminal liability to cover patients, health care personnel, and others.  With the Court having made such a decision, criminalization can be expected to increase substantially.
  • Restricting reproductive health care beyond abortion.  Broad definitions in some abortion bans could lead to methods of contraception such as IUDs and Plan B being restricted. Many fertility-related services could also face legal challenges, and the American Society for Reproductive Medicine has warned that “there is a clear and present danger that measures designed to restrict abortion could end up also curtailing access to the family building treatments upon which our infertility patients rely to build their families.”  Beyond these immediate impacts, the legal rationale of the decision opens the door to the erosion of the right to contraception and other privacy-related rights, like LGBTQ+ rights. The rulings in Roe and Casey were built upon a legal foundation of an implied right to privacy found in the Constitution. Hence, the Dobbs decision to overturn these cases could threaten other decisions and precedents that rely upon a similar rationale (i.e. Obergefell v. Hodges).
  • Abortion could be less accessible, even in states that have statutory protections.  Although it will become increasingly logistically difficult with multiple adjoining states banning abortion, some patients who have the means to do so will travel to access the procedure.  A Middlebury College analysis found that average travel distance to the nearest clinic will increase from 33 to 282 miles for patients living in states that will ban abortion.  Even states with statutory protections for abortion already had insufficient health care professionals who provide abortion and absorbing patients who travel will also make it more difficult to access care in these states; in Oklahoma, which has now banned abortion, abortion provider organizations reported a 2,500 percent increase in patients following Texas banning the procedure under Senate Bill 8 in September 2021.
  • Abortion bans will likely exacerbate the maternal mortality crisis.  The United States has the highest maternal mortality rate in the developed world, with stark racial inequities as Black women, Indigenous women, and other women of color face maternal mortality rates multiple times those of White women. With abortion access curtailed following the Court’s ruling, the maternal mortality crisis can be expected to worsen, especially as states with more abortion restrictions have been found to have a higher incidence of maternal mortality. With abortion banned without exception, pregnancy outcomes like ectopic pregnancy, sepsis of the uterus, or a miscarriage the body will not release all become deadly, when there may be no time to travel to another jurisdiction.
  • Medication abortion and self-managed abortion may continue to increase in prevalence.  Medication abortion has become the preferred method of abortion in recent years, comprising 54% of all abortions in 2020 compared to 44% in 2019.  After the Food and Drug Administration (FDA) lifted the in-person dispensing requirement in December 2021 for mifepristone, medication abortion by telehealth can be expected to grow. A rise in self-managed abortion, both using medication and other methods, can also be expected for those who cannot travel, as abortion pills have become increasingly available online.  While only three states – South Carolina, Oklahoma, and Nevada – explicitly criminalize self-managed abortion, other laws could be applied for prosecution. The World Health Organization’s most recent guidance on abortion recognizes the role of using medication abortion to self-manage the procedure, calling it “a potentially empowering and active extension of the health system.”

References