This blog post is the transcript from an episode of the SRHM Podcast titled What just happened?: Abortion in the U.S. after Roe with Mindy Jane Roseman, Elizabeth Nash and Rachel Rebouché.
The SRHM Podcast is available for free on all major platforms.
Hi Everyone and welcome to the SRHM Podcast. My name is Nina Sun and I am an associate editor for the SRHM Journal.
On Friday June 24, the Supreme Court of the United States overturned Roe v. Wade, a case that secured constitutional protections for abortion in the country for nearly 50 years. Although a draft of the decision was leaked a month prior, this milestone ruling means that abortion rights will be rolled back in nearly half of the states immediately, with more restrictions likely to follow. It is no understatement to say that this decision will hurt millions of people in the US and globally – especially those who already face discriminatory obstacles to health care including women, Black, Indigenous, and other people of colour, people with disabilities, people in rural areas, young people, immigrants, and those having difficulty making ends meet.
Today’s episode of the podcast features three experts who will speak of the implications of this decision. The conversation is moderated by Mindy Jane Roseman who is the Director of International Law Programs at Yale Law, the Director of the Gruber Program for Global Justice and Women’s Rights, and a fellow SRHM Associate Editor. Mindy is speaking with Elizabeth Nash who is the Principal Policy Associate, State Issues with the Guttmacher Institute in Washington, DC. You will also hear a leading scholar in reproductive health law, health care law, and family law, Rachel Rebouché. Rachel is the Interim Dean of Temple University Beasley School of Law and the James E. Beasley Professor of Law.
We hope you enjoy this episode.
Mindy Jane Roseman
Thank you, Rachel and Elizabeth, for being here and for sharing your perspectives and insights with SRHM.
Before we begin, I want to just put the decision of Dobbs V. Jackson Women’s Health Organisation, which was decided on the 24th of June 2022, in context and cover just three important aspects of the case, which as we all know, is decided six to three, with two concurrences, Justice Alito writing for the majority. Because the audience for SRHM tends to be global, I’m going to just give the context to remember that this decision is an interpretation of the meaning of the US Constitution by the Supreme Court. The Supreme Court is composed of nine individuals who are appointed for life by different US presidents, and they’re confirmed by the US Senate. The Constitution of the United States dates from the late 18th century. And it does a few things. It manages the power relationships of the individual colonies, the new states, and the newly established federal government. It answers questions like which jurisdiction has the power to do what or to not to do what. It establishes and manages the authorities of the three branches of the US government, the executive, legislative and judicial, also known as the checks and balances, and it decides who counts as a citizen of the United States as in entitled to the protection and the rights enumerated or not in the Constitution and the Bill of Rights and the subsequent amendments. So remember, at the time of the founding of the US, only white men counted, it was and is a settler society. So native peoples didn’t count. It was a slave and racist society. So black people didn’t count as citizens. And it took a war in the mid-19th century to end slavery. But the effects of white supremacy continue. It is a country of immigration, but political battles continue over who and how immigrants can become citizens. And most importantly, at the time of the founding, and persisting today, it was an is a sexist society. Women couldn’t vote, own property in their own names for the most part and so on. These facts are important in understanding the decision.
So okay, Dobbs. The case initially was Mississippi’s defence of its 15-week abortion ban, a pre viability ban that under the prevailing jurisprudence, that’s to say Roe and Casey, it violated constitutional rights. But Amy Justice Coney Barrett was newly appointed to the court, and Mississippi asked the court to overturn Roe and Casey and it did. Roe and Casey are no longer good constitutional law. The majority’s reasoning is important to understand it replaces for no good reason, beyond its personal preference, the test for recognising the constitutional protection of unenumerated rights, also known as fundamental rights, these are not explicitly mentioned in the Constitution, or the Bill of Rights. Rather than interpreting the meaning of the words of the Constitution in light of dynamic lived experience, which is how the court used to look at unenumerated rights, Alito looks to what was and is “deeply rooted in history and tradition”. If it wasn’t in the minds and practice of the white men who wrote the Constitution and the Bill of Rights in the late 18th and 19th century, it isn’t a right. This is known as originalism or traditionalism. So the word abortion doesn’t appear. The word privacy doesn’t appear in the constitution. So in his mind, these can’t be protected by the US Constitution. He’s claimed for the majority that these were read erroneously into the Liberty and due process words that are in the amendments. Which as the concurrence and justice Thomas’s opinion hints to that contraception, same sex marriage decriminalisation of lesbian, gay, bisexual and trans people’s and relationships, whose protections the Supreme Court previously found within the meaning of privacy and liberty, are also now in jeopardy.
The other point that emerges strongly from the majority opinion and Kavanagh’s concurrence, this issue is now returned to the States, at least for the moment. His argument is based on a claim of neutrality. But this has been a conservative talking point about states’ rights since the Civil War, and against all forms of federal government regulation that conservatives don’t like. Abortion, along with all these likely other issues is meant to be regulated Kavanagh claims, by each of the 50 states rather than the federal government and that’s where we are at the moment. Kavanaugh suggests that abortion hostile states can’t keep its residents from travelling to abortion friendly states, the so called right to travel. But that isn’t in the Constitution explicitly either. So we need to watch this space. And we’ll hear more about that momentarily.
So with that, I’m going to turn to Elizabeth Nash and Rachel Rebouché to tell us what this means. What are the effects of Dobbs and what might be done.
And let’s start with Elizabeth. Could you tell us, what are the effects of Dobbs and can you give us an overview of what’s happening in the states in terms of laws and bans and special sessions and who might be affected by the laws.
Thank you, and thank you so much for having me. You know, we are seeing immense changes already in the legality of abortion across the country. And this is this sort of back and forth around abortion bans is going to continue for some time. I’m expecting some weeks or months around whether states are able to ban abortion, or if some of the cases in state court that have been filed will support abortion access. So where we stand in early July, is that we have nine states that have banned abortion. Five of those states ban abortion entirely four of them ban abortion at six weeks, and we’re expecting this number to grow. And in fact, we have three additional states where providers have stopped providing abortion services, because the law is so unclear. So when you’re thinking about which states are banning abortion, it’s primarily those in the South and the middle of the country, what we call the Midwest and the plains. So where abortion is more protected is generally along the west coast, the Northeast, the Mid Atlantic, and a few states in the middle like Illinois, Colorado, and New Mexico. So really, we’re seeing real incursions to accessing abortion across most of the country. And to think that, you know, America, the United States is a very large country. So as states are banning abortion, we are seeing what that means for patients. Right. So even when we had Texas at a six week ban and Oklahoma had a total ban, that was a huge disruption in accessing abortion services, not only near those two states have sort of in the lower South, but across the country. So if you think about Texas, Texas banned abortion last September – you could have an abortion in weeks four and five. But what that meant was at Texas patients were basically going not only to the state next door for abortion services, but as far away as Washington State and Maryland. And to put that in some context to get to either Washington State or Maryland, from Texas, you’re travelling about 1000 miles each way. So you’re driving very long distances and spending many days away from home, and it’s expensive. So basically, your typical abortion costs about $550. When you start adding in travel costs, these costs escalate by hundreds of additional dollars. So this is very expensive. And the point of talking about the expense and the travel is to illustrate that this is not possible for a lot of people across the country. They cannot simply pick up and go to another state particularly far flung states. And so we know that people cannot access abortion services when they need one and the people who are more likely to not be able to access these services are poor, poor individuals, people with lower incomes, black and brown people and young people as well as LGBTQ individuals, because these are the people who have been systemically oppressed have lower access to health care, and have a more difficult time in getting abortion services. So you know, we’re so there is a real racial and social economic divide here in accessing abortion services.
Now, all of this is happening also at the same time, we are seeing states that are expanding access to abortion services, and this is ramping up, probably not surprisingly, the decision has sort of provided a little kickstart for some of these states to protect abortion rights. So right now, we have 16 states and DC that have statutory protections for abortion rights. And that’s basically a floor right like that sort of gives people a sense that there’s a right to abortion, they can access abortion, where states are going now is making abortion more available. Right, because we know, just having a law isn’t enough. So we are seeing states allow non physician clinicians to provide some abortion services. So professions like physician assistants, certified nurse midwives, and advanced nurse practitioners are able to provide abortion services, we’re seeing states shore up abortion coverage in health plans, both public and private plans. And we are seeing states provide funding to help people pay for abortions because we know most abortions are paid for out of pocket. So without health insurance. And then you’re also seeing states taking steps to protect their providers. So in the States, you know, there are steps that are being taken so that providers are safe when they’re providing abortion services. And then we are also seeing some states provide further protections around clinic access, like who’s going in and out of the clinic, and making sure that they are safe. And then finally, there are some states that are providing training, helping fund training for abortion services, because we know that is not uniformly except accessible in medical schools. So there’s a lot that states are doing so which states are doing these things. So you have states like Connecticut, Colorado, New Jersey, Delaware, Maryland, these are all states that have been moving in this direction, you know, we can add in New York, Oregon and Washington as well as states that have been just this year, adding protections for abortion, because really, what this case is done is focus the state legislatures that were generally progressive in a new way. Because before the decision, what a lot of these progressive legislatures were saying was, well, we’re fine we are we are going to protect abortion, we’re fine. You know, we have a provider’s patients can get care. And what they’re realising is that what the laws they had in place were not enough. And that not only do they need to protect the rights for their own residents, they have to help people coming from out of state. And so they’re really putting their money where their mouth is to help people access care. And as much as they are doing this, we know that it won’t reach everyone who needs an abortion because not everyone can leave their state as I was talking about before. Certainly childcare is a real issue for people who need abortion services. And that can be the thing that keeps someone from being able to leave the state or having to take time off work. Many people who need abortions have jobs that do not have paid time off, and they cannot afford to take those days off. So there there’s a real pull and tug around being able to need an abortion and being able to access it and it’s very much geographically based. And so we’re really seeing this, you know, being crystallised and exacerbated and the situation is fluid. You know, we are anticipating that there are 26 states that are certain are likely to ban abortion in the coming months. So we have nine right now, and we’re expecting many more. And in some states, it’s because there’s already a law on the books. And now there’s a court case around this ban that’s playing out in state court. And in some of the states, we’re going to see legislative special sessions. And these, this is a time when the legislature comes back into session at an irregular time, right, they have a time they’re normally in session. And this is a special session. And so we’re anticipating a number of states to come into session and to pass abortion bans. And these states include those like Indiana, Nebraska, perhaps Montana, and maybe Florida. In Florida, would be kind of a key state to keep an eye on because it’s so politically important nationally, it’s important for abortion access, it’s one of the few southern states where abortion has been available up to 24 weeks, and where people come from other states, but also politically, because the governor of Florida has national aspirations. And so they have a special session on abortion, it really means that conservatives are moving forward on abortion. And I think I’ll leave it there.
Mindy Jane Roseman
Elizabeth, thank you so much. And you’ve really painted quite the patch work for us. We’re now going to turn to Rachel who I think in light of what Elizabeth says, could you give us a perspective on what the federal US government can and is doing to restore abortion rights. And also a little bit about movements to ban abortion rights and if you could tell us a little bit also about the practice of telemedicine to reach people who are located in abortion hostile states at the moment and also interstate travel over to you, Rachel, thank you.
Thank you, Mindy, thank you for having me here. And that was fascinating. Elizabeth, thank you so much for all the work that you and Guttmacher.
So in terms of federal rights, this is a complicated picture. Everything we’re talking about today, but complicated map of changing policies and laws up against changing access to abortion. So I’m going to spend just a few minutes talking about the federal piece of that now, as Mindy described, the Supreme Court and Dobbs returned abortion regulation to the states in so far that the federal constitution doesn’t provide a constitutional protection for pre viable abortion across the United States. So just as you’ve heard, for a number of decades, abortion access has been fraught in many places, what has been would have been called abortion deserts existed in the south and in the Midwest where there were very few providers long distances to get from clinic to clinic, a real scarcity of services. But even so overturning Roe v. Wade, and Planned Parenthood versus Casey has changed the legal landscape such that those states could heavily restrict abortion, they could not ban it. And that’s what you’ve just heard described.
Now, the fact that the Supreme Court has returned abortion regulation to the States because there’s not a federal constitutional right to pre viable abortion, at least in terms of it not being banned, doesn’t mean that the federal government through Congress could pass a law that, in essence creates a national right to abortion or a national ban on abortion. And so for the first piece of this is to think about what role legislation could play such legislation on the abortion rights side has been proposed the Women’s Health Protection Act that made it through our House of Representatives, but it’s stalled in our Senate because there were not sufficient votes to clear it out of the Senate to make it move out of Congress so that it could be signed by President Biden. Arguably the same dilemma exists for those who would want to pass a federal ban on abortion. So right now, the legislative landscape at this federal level looks like it’s at a standstill until either Democrats or Republicans get the votes they need to essentially overcome the filibuster, which is a mechanism by which you can stall a bill through debate unless you have 60 votes to end the filibuster. More recently, as in yesterday, June 30, 2022. President Biden has made the suggestion that he might seek to convince a congress people to make an exception into the filibuster so it’s a majority vote out for abortion. That may not be successful, we’ll have to see. For the US listeners vote in the fall. Okay, so that’s legislation.
Moving on, what else can the federal government do? This is a really interesting question at the moment, just because Congress may not pass a law for or against abortion anytime soon. That doesn’t mean that the federal government has no role to play. In fact, the federal government has a number of actions it could take on behalf of abortion access, which is what I’m going to spend my time on since President Biden is our current executive in chief and is committed to abortion rights in public statements that he’s made. We can return to this conversation if a person is elected president who is does not support abortion rights. Okay, so a couple of things. First, the federal government has been called to do an all agency audit of the powers that agencies have that touch on abortion access. So I think this is a very convincing proposal. At the very beginning of President Biden’s administration, he called for an all agency audit to think about how each agency could advance racial equality and economic justice. And that executive order tasks, agencies with concrete specific actions that they could deploy within their expertise and competencies in order to address that national crisis. We are at a similar point where the Biden administration through an executive order or even through a declaration of a public health emergency could call on the federal agencies to think about how they might intervene in providing information, expanding access, assisting patients, providers and those who help them. So a couple of examples: Health and Human Services has had made a nod to doing a similar type of audit through many of the sub agencies that report to HHS. There is work to be done in as Mindy applied, expanding telehealth infrastructure for the distribution of medication abortion through telehealth means I can say a little bit more about that. Thinking about the role of our centre for Medicaid Medicare services and how they might provide federally compliant abortion services through their powers to directs how states offer particular services. And then options we don’t even know about. So I’m just naming a couple for the sake of time, but there’s so many different things that the federal agencies do that are going to become important. Just think, for example, about federal communications and how it could undermine Trump’s attempts at misinformation about where abortion services are available, or track fake clinics that pop up online seeking to provide people services but actually hoping they timeout of pregnancies. This is the virtual iteration of Crisis Pregnancy centres that we see today. So there there are a number of things to do. I would start with the proposal that the Biden administration tasked agencies to use its powers and expertise to address problems of information access.
Next, the Food and Drug Administration, a federal agency regulates the safety and efficacy of drugs across the country that enter the market. They are the gatekeeper of which drugs will be approved for use and how they’re dispense. They are the arbiters of what is the uniform drug policy of the United States and they have that power through a congressional statute, the Food, Drug and Cosmetic Act. I mentioned this because there’s growing pressure on the Biden administration to support through the FDA and through the Department of Justice calls of preemption. What’s preemption? Preemption is a federally based strategy, it’s rooted in another provision of the Constitution that’s not at stake adopts the Supremacy Clause. And basically that means that federal when federal law speaks on an issue and it intends to speak exclusively, it preempts states from contradicting its authority. So here’s the argument, the FDA, and that’s true for law and regulations, different types of policy, the FDA in closely regulating medication abortion for decades – note more closely and more strictly than other drugs that have a similar safety profile, but let’s leave that to the side for the moment. So the FDA has approved misoprostol on the first drug and a medication abortion in 2000, change regulations reassessed based on mountains of evidence in 2016. And just in 2021, in December, lifted a rule that misoprostol, first drug and medication abortion had to be picked up at a health care facility by a patient, long short, it allows medication abortion to be mailed, which is it had which was an experiment that had started after court decision in the pandemic. Now that’s been that restriction permanent lifted, paving the way for mailed abortion and online counselling, prescription assessment services. The FDA could come out very strongly and say it’s carefully reasoned opinion and decades of regulations are the final word on how medications should be available. So when states ban it, take it off the market, refuse to allow providers to prescribe an FDA approved drug which is really unheard of for states to do, they are preempted from doing so. Now, this argument has gained a lot of traction. So I spend some time detailing it here. Because it relates to another federal set of interventions.
There are a whole host of federal statutes that can touch on abortion that will preempt state bans that contradict those statutes, so EMTALA, which is a statute that governs what ERs the care that ERs must provide for people who have a medical emergency. If a state bans abortion and does not have a wide enough exception or any exceptions for medical emergency, providers in that state need to know that they are nonetheless under federal law required to provide abortion care if there is a medical emergency. HIPAA is a law that governs privacy of patient information. Health care providers are not allowed to turn over someone’s private health care information such as whether or not they attempted to have self-managed abortion unless they are subpoenaed or have some other legal document require you to do so. Finally, ERISA is a statute that governs employee benefits. Employees have the right to decide whether or not they’re going to provide a travel benefit for their employees to seek abortion services out of state, if there’s not a knee replacement available in Arkansas, employers are entitled to have as part of their benefits, packages, compensation or other support for that employee to seek care in New York. The same is true for abortion. And if states tried to encroach upon those employers, organisation of how they arranged benefits, there’s arguably a preemption argument there. So I’m running out of time. But I will just say a couple of last things that all underpinning preemption audit of agency powers, a national right through congressional legislation is the need to have better coordination and more comprehensive information and material support for people who are seeking abortion care across the country. There is going as Elizabeth made so clear, there is now an increasing attempts of states to not just ban abortion, but to attach their policies outside of their borders through the Civil type of litigation we saw in Texas, the SB8 measures that’s being debated right now, while at the same time states like New York and Connecticut and California and Maryland and Washington and Oregon, a host of states are thinking about how to protect their providers, patients and the people who helped them from the efforts of anti-abortion states to attach their policies outside their borders. I mentioned that to say there’s interstate conflict abounds, and the federal government could play a role in making clear what people’s rights are, how people can seek material support, and then offering that material support vouchers through other means through the allocation of space on federal land controversial, many risks, logistical difficulties, but possible. And, and I guess I’ll stop there.
Mindy Jane Roseman
Rachel, that is both hopeful and frightening. And thank you so much for thinking about these things. Rachel and some colleagues have published an article, perhaps we’ll be able to attach that to this podcast so people can take a deep dive if they’d like as well as link to Guttmacher and all the work that Elizabeth is overseeing.
I know, we’re out of time. I just wanted to have a blitz final round, if you could speak to, because this is a global audience, do you see any global effects of the decision in Dobbs? What just should we expect in the future or what would you like to see be done in the future? And what might the global community of Public Health and Human Rights professionals do to support women and others who need abortion services in the US? Just quickly, a minute and Rachel, I’ll give the floor to you first.
Well, that’s a tough question, because I think we’re still so enveloped in the chaos of this moment, as things are changing and evolving so quickly. But I would come back to that theme of material and information support. You know, it’s patients who are trying to navigate these changing laws and these changing means of access, and so as much as we can do to not just help people, you know, overcome logistical hurdles and understand the legal landscape that they’re living in and the risks that they might be taking, more concretely because of changes in the regulation of medication, abortion, I think there’s a it’s not going to help everyone it’s just till 10 weeks, people are still going to need brick and mortar clinics. There’s a digital divide in this country for online services. And like I said, I still worry that there’s a real gap in knowledge about what it is and how it works and how to get it. And so just practically, I think we could look to the work in other countries for how some of the means to care have been communicated in more localised community driven ways so that people have information about resources at their disposal.
Mindy Jane Roseman
Thank you. And Elizabeth?
Yeah, I mean, I agree with everything Rachel said and I would add, that, this decision dropped kind of like a bombshell. And it’s had reverberations across the world. And I think one of the reverberations really is that for a long time people in the United States did not hear what advocates were saying around the fact that abortion rights were being eviscerated and that the Supreme Court was poised to overturn abortion rights. And so I think, you know, one of the things people might take away in other countries is, what’s the status of the law in your country? And how is your constitution ready to deal with abortion rights? And so make sure that in your own home, that you know, the laws and the Constitution and everything is in place so that we you continue to protect abortion rights, or you work towards protecting abortion rights, that also would send a message to the United States around the value we place on health care, and those who need pregnancy and abortion services.
Mindy Jane Roseman
Very well said. Thank you both. Just to just to note, in terms of the international human rights space, international human rights norms now are well in advance of the United States Supreme Court. Court’s interpretation of the US constitutional rights protections, the US does not recognise within its country a right to health and gender equality is also something that is less than as protected under international human rights norms. So that is an important space and reference that could be used within the US and globally to ensure that abortion and other sexual reproductive health and rights related issues are secure and have a kind of a common and universal standard by which to face them upon. The other thing to watch is basically what Elizabeth noted is that the anti-abortion movement, which is global, is emboldened by the Dobbs decision. And so where things are politically settled and very embedded within a legal and policy regime in countries, they’re nonetheless under assault. So I think as a global community, we can come together in solidarity. We’ll continue to watch these spaces support each other and advocate for sexual and reproductive health and rights for all. And with that, I’ll conclude I thank you both for your participation and we’ll continue to work together.
Thank you to Mindy Jane Roseman, Elizabeth Nash and Rachel Rebouché for this insightful conversation.
Please see the episode description for links to the resources mentioned by the speakers.
To take action, consider donating to safe abortion funds or abortion clinics, signing petitions, and importantly, voting during elections. We must continue to work towards a future where every person has access to safe abortion.
Thank you for supporting the SRHM podcast which is produced by the SRHM communications team. The music was composed by Tiber Krisztián and Salamon Botond.