The leaked draft Supreme Court opinion overturning Roe v. Wade suggests that the 1973 landmark decision that recognized the constitutional right to abortion could be overruled within the next two months. Though this would not ban abortion in the US, the right to abortion would be left for each state to independently decide. As of May 2022, 28 states are set to ban or restrict abortion if it is not federally protected.
Beyond the principle of a constitutional right to abortion, the threat of an overturned Roe poises many questions: Can people in states with restricted abortion access seek abortion elsewhere? Is this equitable? What exactly does the Roe v. Wade ruling say that makes this debatable? What did abortion access in the US look like before?
(Hint 1: The ruling has to do with the interpretation of the 14th Amendment. Hint 2: In 1972, out-of-state individuals accounted for 60% of abortions performed in Manhattan. We'll get to all of these questions in this article.)
To speak more about these potential ramifications of overturning Roe v. Wade, BuzzFeed reached out to Dr. Lincoln. "My colleagues are truly disturbed to see the rights of our patients being taken away and to see the patient-doctor relationship be eroded and invaded by government regulation," Dr. Lincoln shared. "You can scroll through my TikTok comments section and see how many people living in Texas and other restrictive states are so scared to see their autonomy being taken away — to the point where they are looking into getting an IUD or stocking up on emergency contraception."
Despite certain states protecting the right to abortion, overturning Roe v. Wade results in inequity, wherein only those with the means to travel to states with legalized abortion could obtain one. "This is not fair or equitable — that access to basic healthcare depends on your zip code. Pregnant people should have equal access to reproductive care no matter where they live, and this is why federal legislation is so needed," Dr. Lincoln asserted.
Dr. Lincoln also recognized that overturning Roe would lead to a rise in unsafe abortions and deaths in pregnant people, and disproportionately affect traditionally underserved communities, such as BIPOC and low-income communities. Moreover, delegalizing abortion would not prevent abortions, only make them less accessible. "Illegal abortion will look a lot like what it did in the pre-Roe era," Dr. Lincoln specified.
Deaths of pregnant people would also increase in part because, as Dr. Lincoln cited, legal abortion is safer than childbirth, with complications being extremely rare. In 2019, the US maternal mortality rate was 20 maternal deaths per 100,000 live births. In contrast, there are 0.7 maternal deaths per 100,000 legal induced abortions, and there are 30 maternal deaths per 100,000 illegal induced abortions (in developed nations). Additionally, Dr. Lincoln stated that illegal abortions are associated with higher rates of infections, sepsis, and hemorrhage, and higher needs for hospitalization and hysterectomies.
While Dr. Lincoln believes people may seek out more reliable contraception if abortion access is restricted (like IUDs and arm implants), she emphasized, "The problem is that, in these states, access to and coverage of family planning services can be harder to come by (ironically). I do worry that more people may consider tubal ligations or hysterectomies to ensure they don't get pregnant now but, down the road, may want children. They should not be so afraid of pregnancy that they feel pushed to this, but this is what happens when you have excessive government uterine regulation."
To better understand what would be overturned and subsequent ramifications, let's talk about Roe v. Wade itself and the surrounding social climate: In 1968, 21-year-old Dallas woman Norma McCorvey — "Jane Roe" — was pregnant for the third time. She had given up her first two children and did not want to bring a third pregnancy to term. McCorvey's adoption lawyer referred her to attorneys Linda Coffee and Sarah Weddington, and in 1970, they filed a lawsuit against Dallas County district attorney Henry Wade. A Texas district court unanimously ruled that the anti-abortion law violated the constitutional right to privacy but declined to grant an injunction. Both parties appealed, resulting in Roe v. Wade reaching the Supreme Court later that year.
At the time, abortion was legal in five states and illegal in 30 states without exception. The remaining 15 states prohibited it, as well, but had varying exceptions in cases of rape, health threats, etc. While some Americans could obtain safe, legal abortions by traveling out-of-state (or country) or by paying large sums for a secret, illegal abortion, McCorvey did not have the financial means to do so — and she wasn't the only one. "Back-alley" or self-induced abortions (both illegal and dangerous) were not uncommon at the time. Between 200,000 and 1.2 million illegal abortions took place every year in the 1950s and 1960s, as estimated by the Guttmacher Institute.
In an interview with the New York Times, retired OBYGN Dr. Carmel J. Cohen, who practiced at Mount Sinai Medical Center in New York for more than 60 years, said that "the overwhelming majority of his abortion patients in the early 1970s had traveled from outside the state," and patients "with the financial means would often travel to and from New York for an abortion in a single day." In 1972, out-of-state individuals accounted for 60% of the 118,000 abortions performed in Manhattan.
In 1973, the Supreme Court ruled in favor of "Jane Roe" in a 7-2 decision, striking down the Texas law and federally legalizing abortion. The court declared that the state's anti-abortion law violated the Due Process Clause of the 14th Amendment, which essentially protects one's right to privacy against state action. This constitutional right to privacy, the court held, encompassed one's qualified right to terminate their pregnancy. However, the court also supported governments' interest in protecting one's health and prenatal life. To balance these, the court broke pregnancy into three trimesters: In the first trimester, state governments could not prohibit abortion. In the second trimester, state governments could regulate but not ban abortion. In the third trimester, state governments could prohibit abortion to protect a fetus unless the person's health is in danger.
To many, the pre-Roe v. Wade era mirrors a future era with Roe overturned — one in which, as Dr. Lincoln outlined, tens of millions of people with uteruses would be unable to access safe and legal abortion without substantial financial means. Instead, they would have to travel unnecessarily long distances and likely live in worsened poverty. Subsequently, more pregnant people would likely be exposed and subjected to domestic violence as they'd be less likely to leave their partners (and have lesser means to while pregnant or with a child). Because overturning Roe would allow states to independently regulate abortion rights, one way to impact abortion rights in your state is by voting locally.
