Caught in the Legal System? Abortion Rights Experts Say Murky Laws Post-Roe Overturning Have Caused Strife
The first year after Roe v. Wade's overturn saw heated debate and aggressive legislation against legal abortion, but some doctors, patients and legal experts say they are no closer to understanding the practical ramifications of some of the bans in place.
The result of the 1973 U.S. Supreme Court decision in Roe v. Wade changed the course of women’s history in the United States.
With more control over whether or when they would have children, women enrolled in college and entered the workforce at skyrocketing rates, according to data from the Bureau of Labor Force Statistics and College Board. Maternal mortality rates also declined, as illegal abortions virtually disappeared. In 1972, 39 women died as a result of illegal abortion, whereas only two women died because of illegal abortion in 1976, according to the Guttmacher Institute, a research and policy organization with the mission of advancing sexual and reproductive health and rights worldwide.
Legal abortion led to an expansion of family planning and contraception distribution programs, comprehensive Medicaid and private medical insurance coverage for reproductive health and federal and state initiatives aimed at reducing unwanted teenage pregnancy, according to the Guttmacher Institute.
But the tides on female reproductive rights emancipation turned on Jun. 24, 2022, when the U.S. Supreme Court overturned the Roe decision in a 6-3 vote in Dobbs v. Jackson Women’s Health Organization.
The majority decision was helmed by Justice Samuel Alito, with Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joining the opinion in favor of the overturn, with John Roberts concurrence in the judgment. Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan jointly wrote the dissent, voting to instead uphold Roe.
Alito wrote in the 79-page decision that the right to abortion is not implicitly protected by the Constitution as it does not mention abortion directly. He continued that the right to abortion does not fall under the Constitutionally-guaranteed right to privacy, though it was previously held to be.
Kavanaugh, who joined the Supreme Court with a long history as a conservative, said in a separate concurring opinion that the Constitution is “neutral” on abortion and the ruling “does not outlaw abortion throughout the United States.” Rather, Kavanaugh said, the decision on abortion rights would instead be determined by individual states.
In the year following Roe’s overturn, at least 18 states and Washington D.C. put measures in place to protect abortion access. Some states like California, Vermont and Michigan adopted new amendments to protect access in their state since Roe’s overturning. Five states– Colorado, Connecticut, New Jersey, New York and Washington State – enacted protective laws at the time of the decision leak in late spring of 2022.
In contrast, most abortions are now entirely banned in 14 states, with at least 10 other states either severely restricting abortions or attempting to pass legislation banning or blocking legal abortions, according to a New York Times abortion legislation tracker. Several of the states with full bans in place, including Alabama, Arkansas, Louisiana and Missouri, do not state explicit exceptions in cases of rape or incest, The New York Times data showed.
Two additional states, Georgia and Nebraska, have six-week gestational limits, which abortion advocates say effectively blocks nearly all access to legal abortion as many pregnant people are not aware of their pregnancies before the six-week mark.
Many states had “trigger bans” waiting while abortion rights supporters hoped it would not be overturned. “Trigger bans” refers to legislation stating abortions would be banned either immediately or within 30 days of the scenario that Roe was overturned. Many of those went into effect as predicted, though some continue to be challenged in court at a state level. Legislators in those states with strict abortion laws claim that abortion is killing what they say is an innocent life.
“We’re still waiting to see how a lot of the state legislation shakes out,” Dr. Alina Salganicoff, senior vice president and the director of Women's Health Policy at KFF, tells Inside Edition Digital. KFF is a nonprofit organization focused on health policy research.
The result of pending or proposed bans in combination with non-specific legislation already in place is a legal landscape rife with ambiguity, according to abortion rights advocates. As a result, some are operating on misleading information and doctors and patients often find themselves confused on how to operate within the confines of the law.
“What do you do in a situation where a pregnant person comes in and they have cancer? Their cancer treatment could cause them to have an abortion or … there are hormonal issues involved where it could accelerate the progress of cancer,” Salganicoff says. “Situations like that are more ambiguous and what we’re seeing in those cases is that clinicians are reluctant to perform abortions in those states.”
Exceptions to bans, oftentimes in cases of rape or incest, or if carrying the baby to term would threaten the life of the pregnant person, do exist in most states, but KFF found that many of those exceptions are “in many cases, unworkable,” Salganicoff says.
Not only does that raise the stakes for people seeking abortions, that also opens practitioners up to legal backlash from both the state and the patient. The threat of fines, jail time, or losing the license to practice means many doctors involved in reproductive care now find themselves at a standstill.
“They're, in many cases, in a very difficult situation because they're concerned about violating state law,” according to Salganicoff. “At the same time, they’re upholding standards of medical care and I think potentially could be sued for medical malpractice if they don't provide the services that people need.”
That appears to be a conflict many practitioners are facing in Idaho, where three separate pieces of legislation including two trigger laws banning or prohibiting abortions have gone into place since Roe’s overturn, according to abortion rights advocates.
As it stands, patients who receive an abortion after six weeks of pregnancy there can be convicted of a felony and be sentenced to two to five years in prison. The law pertaining to medical practitioners bans all abortions, and providers found violating the statute can receive a felony conviction of two to five years behind bars, while anyone found assisting or performing abortions can have their license suspended for a minimum of six months, with the possibility of a permanent suspension.
Medical professionals who perform abortions after fetal cardiac activity – generally around the six-week mark – can also face civil litigation, with a penalty of at least $20,000 paid out to any family member of the fetus who sues.
The exceptions to the Idaho bans are generally in cases of rape, incest, or medical emergency.
“When can I intervene? Does (the patient) just need to be sick, or at the brink of death?” Dr. Amelia Huntsberger said in an interview with Idaho Capital Sun. “A woman may be stable at the time of her diagnosis, but she could become unstable at any time. … So if there’s a heartbeat and I surgically remove the pregnancy from the fallopian tube, am I going to face civil or criminal charges? Should the woman sit in the hospital and wait for her tube to burst open and start bleeding heavily? Should she go home and wait for a life-threatening bleed to occur?”
And with the exceptions of the laws in place in Wyoming and North Dakota, states with rape and incest exceptions require a police report. The police report must be filed detailing the rape or incest in order for the pregnant person to legally qualify for an abortion. Only 30-40% of rape and sexual assault cases are reported, according to Rape, Abuse, and Incest National Network (RAINN), and only 20% of incest cases are reported, according to an FBI study from 1984.
Further complications, like whether a police report will be available before an investigation into the reported instance of rape or incest is conducted and how long it would take for doctors to have the exception approved by their clinic or attorney, provide even more hurdles for victims to seek treatment.
“When you see a doctor and you want care," Salganicoff says, "You don't want to know what the lawyer thinks. You want to know, what does the doctor think?"
That ambiguity, Salganicoff says, is leading many providers in red states to discuss relocating. “We’re beginning to see signs that some of them are leaving states that have abortion bans,” she explains.
That trend is particularly clear in Huntsberger’s state of Idaho. Bonner General Health in the state’s northern city of Sandpoint, which is where she practiced, says it stopped providing obstetrics services as of May 1, in part due to “Idaho’s legal and political climate.” The climate, the hospital said, has led to “highly respected, talented physicians … leaving."
The rural hospital once served a town of 9,000, as well as those residing outside municipal limits. Locals seeking pregnancy care, including those in active labor looking to give birth in a hospital setting, now must drive at least an hour to the next closest hospital in Coeur d’Alene.
Huntsberger said around the time of the announcement that she, too, made the difficult decision to leave the hospital as a result of what she says are the murky laws surrounding legal abortion in the state, according to Idaho Capital Sun.
There are now heightened concerns other abortion-restricted states may soon see the same medical migration patterns, experts say.
Some medical recruiting firms are seeing less OB-GYNs accept job offers in red states, and in turn, those staffing firms are experiencing increasing difficulty filling vacancies on healthcare facilities' staffs, according to a report by the Washington Post.
Candidates are often specifically citing Roe’s overturn or legislation in place that they fear could lead them to lose their medical license, be penalized with hefty fines, or face prison time, one staffing firm, AMN Healthcare, told the Post. The same staffing firm said they did not have a single physician seeking placement in a red state because of proposed bans or bans in place.
“We already know that in many communities there are maternity care deserts,” Salganicoff says. “What is this going to mean for communities who are losing their OBGYNs where, also, maternity hospitals or maternity wards will be closing? It is going to be a consequence of this ruling … and it particularly falls hardest among people who are in rural communities.”
Some people on social media have discussed their own intentions to leave red states in the immediate aftermath of Roe’s overturn – conversations only fueled by simultaneous anti-LBGTQ and trans bills sparking up in the same red states.
A more realistic option for many, if only marginally, is to travel out-of-state for care, though that choice is also plagued with ambiguities.
Several pro-choice states, like New York, California and Oregon, have protections in place for out-of-state patients and providers, shielding both those seeking abortion and those performing abortions from legal ramification under other states’ laws by preventing disclosure of medical records and modifying state extradition statutes. Many of those states have state funds earmarked for those out-of-state patients.
But as some states on the West Coast and in the Northeast put strong protections in place, certain states neighboring red states saw a surge in abortions performed in the nine months following the Dobbs opinion, according to #WeCount, a nationwide study by the Society of Family Planning has been tracking the number of abortions since the Dobbs decision.
#WeCount found that one of those “surge states” is Illinois, which neighbors states where near-total bans are in effect: Kentucky, Tennessee, and Missouri. Illinois saw an increase in total clinician-performed abortions by 12,400 cases in the nine months following Roe’s overturn.
The state that saw the greatest increase in clinician-performed abortions is Florida – one of the only states in the southwest where abortions are still allowed. Florida saw an increase of 12,460 abortions performed in the same time frame, according to #WeCount, although whether it will continue to be an access point is unclear.
In April, Gov. Ron DeSantis signed new legislation banning all abortions in the state after six weeks. Residents are fighting to include protections for abortions rights on the 2024 ballot through their citizen-led campaign, Floridians Protecting Freedom. They need 800,000 signatures by February 2024. The group says they have so far collected more than 225,000 signatures toward their cause.
"Abortion access in Florida is important, not just to people who live in Florida, but for many of the states that are in the south and are next to Florida," Salganicoff says
Travel, however, is an imperfect option. “Anecdotally, what abortion providers are saying from bordering states is that they're seeing that patients are coming more distressed to the clinics. They are also coming later in pregnancy because if somebody has to travel, they have to come up with the money to travel,” according to Salganicoff.
And the emotional and financial hurdle for the patient is just the beginning. While there’s no law currently in place that directly criminalizes patients, abortion providers are already bearing consequences of caring for out-of-state patients.
Dr. Caitlin Bernard, an OBGYN, was reprimanded, fined $3,000 and nearly lost her medical license after she performed an abortion on a 10-year-old believed to have become pregnant through rape. The unnamed minor from Ohio was found to be six weeks and three days pregnant when Ohio’s trigger ban, outlawing abortions after six weeks, activated. A child abuse doctor who suspected the minor was a victim of a crime referred her to Bernard so the minor could seek help out-of-state.
Bernard hoped to share part of her young patient’s story to shed light on the reality of the consequences of bans. Instead, she found herself quickly embroiled in controversy when Indiana Attorney General Todd Rokita submitted a complaint against Bernard, claiming she violated federal and state laws relating to patient privacy when she shared parts of the story with the journalists.
Bernard claims Rokita intended to make an example of her. “I think that if the Attorney General Todd Rokita had not chosen to make this his political stunt, we would not be here today,” she said in her May 2023 testimony.
Bernard sued Rokita in November 2022, claiming the attorney general used "invalid" consumer complaints to justify "overboard" investigations on physicians. Bernard dropped the lawsuit in December 2022.
Neither Bernard nor Rokita responded to Inside Edition Digital’s request for comment.
And an ongoing civil lawsuit in Texas might provide some insight into how consequences of abortion could impact women in years to come. A woman was reported to police by her ex-husband, Marcus Silva, months after she filed for divorce. Silva alleged he found a pill labeled “MF” in her purse in July 2022. He believed the pill was mifepristone, a prescription drug that has many usages including in medication abortion.
In March, Silva filed a $1 million wrongful death lawsuit against his ex-wife’s three friends, who he accused of helping his ex-wife terminate her pregnancy. Two of those women filed a countersuit, describing Silva as manipulative, controlling and a “serial emotional abuser,” and alleged he did not file in the interest of protecting the fetus but instead to control his ex-wife.
“I know either way he will use it against me,” the woman said in text messages to her friends, according to evidence submitted in connection with the suit. “He would use it as [a way to] try to stay with me.”
Arcely Garcia, the attorney representing the women named in Silva’s lawsuit, declined to comment regarding the case. Silva’s attorney did not respond to Inside Edition Digital’s request to comment.
How these bans and restrictions will continue to play out, Salganicoff says, is unclear.
“We don’t have a good sense of who’s getting abortions and who’s not,” she says. “We don’t know how many women are getting abortions outside of clinical settings … we also don’t know yet what’s going to be the impact on birth rates.”
The numbers cited by the various women’s health organizations studying the trends do not reflect medication abortion, or the abortion pill, Salganicoff explains. Instead, the numbers we have today are based on surgical or in-clinic abortions, which the Guttmacher Institute found constituted less than 50% of all abortions in 2020 and do not include the recent rise in telehealth options or account for medication shipped to patients from out-of-state.
What makes it harder to make predictions is that much of the legislation against is still ongoing. “There are still states passing bans, we have the federal litigation going on, and most notably, the case that affects mifepristone,” Salganicoff says.
The fear, though, is largely that the Dobbs opinion will disproportionately disadvantage already marginalized communities in the years to come.
“A lot of the states that have these abortion bans have high populations of women of color. You look at Texas, you look at Alabama and Mississippi [and] you see a lot of [low-income] Latina and Black women,” she says. “Those places also have a much weaker social safety net and structure for supporting families – from Medicaid expansion, to childcare, to education, to job opportunities.”
For financially unstable families, a legal battle against abortion-related allegations or losing eligibility for social resources, or having to complete a pregnancy, could decimate some people's chances to get out of poverty, according to Salganicoff. And the consequences of such continued cycles extend to people's overall physical and mental health, she says.
But as certain states continue to push forward legislation restricting abortions, a strong counter-fight to protect the path to safe and legal abortion continues, she says.
“Clearly, the 2024 election is going to be critically important in determining the future of abortion in this country,” Salganicoff says.
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