Post-Roe v. Wade: Clinics Closing Down, Uncertainty Over Exceptions

Over a hundred days after Roe v. Wade was overturned, dozens of clinics have been forced to stop providing abortions. And while abortion bans foresee exceptions, there is much uncertainty about how they work in real life.

In June, the Supreme Court voted to overturn Roe v. Wade, the 1973 landmark ruling that legalized abortions nationwide. Three months later, abortions are banned or severely restricted in at least 15 states, and more are to follow.

According to a survey from the Guttmacher Institute, a reproductive-health nonprofit organization, 66 clinics across 15 states have been forced to stop offering abortions. Of those 66 clinics, 40 still offer other services, while 26 have shut down entirely.

Before June 24, 79 clinics across these 15 states provided abortion care. As of October 2, that number had dropped to 13, and all clinics are located in Georgia. This means that in 14 of the 15 states, there is currently no provider offering abortions.

Altogether, these 15 states are home to almost 22 million women of reproductive age (aged 15–49), the report says. That means almost one-third (29%) of the total US population of women of reproductive age are living in states where abortion is either unavailable or severely restricted.

How do exceptions work?

In all these states, however, abortion bans foresee exceptions. Most of the time, abortion might be carried out to save a pregnant woman's life or prevent serious risks to the pregnant woman's physical health. In some states, abortion is allowed if the fetus has suffered or will suffer from serious health issues during the pregnancy or is not expected to survive.

Despite the exceptions, patients seeking an abortion and healthcare providers reported confusion, fear, and sometimes even a refusal to provide medical help.

Jill Hasday, a law professor at the University of Minnesota, says there appears to be considerable uncertainty about how anti-abortion statutes that permit abortion in some exceptional cases will be interpreted by prosecutors and courts.

"For this reason, there have been numerous news reports about doctors who refuse to provide immediate medical care to women who are miscarrying because the doctors are afraid that a state prosecutor might later interpret that treatment as violating a state prohibition on abortion," she said to Healthnews.

According to news reports, some doctors wait for the miscarriage to happen, which, Hasday says, is a problematic strategy because it endangers a woman's life.

Tufts University experts recently shared stories of OB-GYNs who cannot even mention the word "abortion" after diagnosing the fetus with major anomalies. Moreover, some doctors are asked to consult the hospital's lawyers before consulting a patient.

Is the fetus a person?

In September, the anti-abortion group Catholics for Life formally asked the Supreme Court to consider the legality of fetal personhood. Under current federal laws, a fetus, which is a baby at eight weeks of pregnancy, is not considered a person and does not have legal protections. However, if the Supreme Court grants the fetus a personhood status, the abortion can be classified as manslaughter.

Currently, women may face criminal charges for murder if they use drugs, such as methamphetamine, during pregnancy. The investigation by "The Marshall Project" and partners found that since 1999, more than 50 women in the US have been prosecuted for child neglect or manslaughter because they tested positive for drug use after a miscarriage or stillbirth.

According to the National Advocates for Pregnant Women, a nonprofit organization, at least five states – Kentucky, Louisiana, Ohio, South Dakota, and Texas – define "person," "individual," or "human being" to include a fetus throughout the criminal code, not just in the context of feticide statutes.

"In many criminal laws, the idea of a fetal person is ludicrous. Even so, these sweeping definitions throughout the criminal codes could open the door to a dizzying array of statutes being mobilized in pregnancy criminalization," the organization says.

Hasday, a law professor at the University of Minnesota, says that the fetal personhood law is about prohibiting abortion even if the particular jurisdiction would like to allow it.

"That obviously would reduce women's control over their own body," she said to Healthnews.

What are the alternatives?

According to the survey from the Guttmacher Institute, the 14 states where abortion is currently unavailable accounted for 125,780 abortions in 2020. This means women are left with an alternative to travel to another state, which requires time and funds.

In August, the Washington Post reported that the National Abortion Federation (NAF), one of the country's largest abortion funding organizations, now require patients who receive their funding to take both medical abortion pills in a state where abortion is legal. The two-part regimen requires taking pills between 24 and 48 hours apart, which means an even longer trip outside the state.

A study published in Reproductive Health surveyed patients seeking an abortion at four facilities in three US states from January to June 2019. One-third (34%) of 741 participants indicated they would "definitely" or "probably" consider self-managed abortion (SMA) if they "were unable to obtain care at a health care facility."

"As abortion access becomes increasingly restricted in the US, SMA may become more common," the authors concluded.

To improve access to abortions, Google announced in August that it had updated its features. Now, to run ads on a search that target keywords or phrases related to getting an abortion, advertisers in the US must complete the abortion certification process. Then, based on the information, an in-ad disclosure will show whether advertisers actually offer abortions.

How will women's health be impacted?

Triggering abortion bans fueled concerns over possible effects on women's health. For example, in a perspective article, the University of California San Francisco (UCSF) experts predicted that the abortion ban might increase the risk of death for pregnant women with cancer.

Researchers estimated that at least 1,500 women would be diagnosed with pregnancy-associated cancers (PAC) in the next year in states that imposed restrictions on abortions. Among them, 135 and 420 women will face compromises in their cancer care and potential loss of life.

Meanwhile, on Thursday, students at more than 60 high schools and universities across 30 states are holding strikes to defend their reproductive rights and freedom of gender expression.

Resources:

Guttmacher Institute. 100 Days Post-Roe: At Least 66 Clinics Across 15 US States Have Stopped Offering Abortion Care.

Tufts University. ‘No Part of This Overturn Is Positive’: Maternal Health Experts on the Supreme Court’s Abortion Decision.

The Marshall Project. They Lost Their Pregnancies. Then Prosecutors Sent Them to Prison.

National Advocates for Pregnant Women. When Fetuses Gain Personhood: Understanding the Impact on IVF, Contraception, Medical Treatment, Criminal Law, Child Support, and Beyond.

Washington Post. New restrictions from major abortion funder could further limit access.

US Senate. Open Letter.

University of California San Francisco. Abortion Ban May Increase Risk of Death for Pregnant Women with Cancer.

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