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August 06, 2022

Abortion advocates strategize next steps post-Roe

“The most dangerous thing about abortion is not being able to get an abortion,” said Dr. Erin King, executive director of the Hope Clinic for Women in Granite City, Illinois.

A panelist on the Showcase program “The End of Roe and the Rule of Law” held on Aug. 5 at the American Bar Association Annual Meeting in Chicago, King sought to counter what she suspects are outdated facts about abortion.

Prior to June 24, when the U.S. Supreme Court ruled overturned Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization case, King said:

  • 18% of pregnancies ended in abortion
  • 1 in 4 pregnancy-capable people will have an abortion
  • The typical person obtaining an abortion was between 20 and 29 years old
  • Two-thirds of those who had abortions were already parents
  • About 75% of abortions were done by the ninth week of pregnancy
  • Just over half of abortions were done using medication
  • Abortions were being done at clinics, a doctor’s office and even at home
  • Abortions had fewer complications than giving birth, having dental surgery and other medical procedures.

State-by-state barriers to abortion before Dobbs, King said, included waiting periods between seeing a doctor and having the procedure, special rules about consent that weren’t medically accurate, unnecessary tests, limitations on specialized centers, and dispensing medications and restrictions on telehealth.

Everything that was making abortion safe was being made less safe by these rules, she said.

Melissa Murray, the Frederick I. and Grace Stokes Professor of Law at New York University School of Law, referred to the “landscape of confusion and chaos” inflamed by the Dobbs decision.

That uncertainty about what’s allowed has led some doctors to err on the side of not performing abortions, which can be “as effective as an outright ban on abortion,” she said.

Co-lead counsel on the Dobbs case, Hillary Schneller said her group, the Center for Reproductive Rights, is trying to litigate and “mitigate the harm that the Supreme Court decision unleashed” and spoke of short, middle and long-term effects of the ruling.

In the short term, the center is trying to maintain, preserve or restore access to abortion. In addition to the 13 states that had trigger bans, some states with old bans that predated Roe v. Wade came back into effect. “Within days of the decision … we tried to stop as much of the harm as we could from happening, knowing we were not going to be successful everywhere,” she said.

For instance, in Louisiana her group challenged three trigger bans on the basis of vagueness. The bans were then blocked on and off and now the case is at the state Supreme Court. They challenged the trigger ban in Mississippi under the state constitution, but in the end the state Supreme Court declined to hear the case.

In the medium term, “The next phase of the legal work … will be making sure people can still travel to access abortion care,” Schneller said. Longer term, they are working to ultimately rebuild “the right to abortion and the broader right to bodily autonomy.”

On the policy side, Chi Chi Okwu, the executive director of the reproductive justice organization EverThrive Illinois in Chicago, said her organization is working to pass the Reproductive Health Act, which would establish the constitutional right to abortion in Illinois. They are also working to improve insurance coverage, extend Medicaid to cover abortions and repeal forced parental consent, among others.

“Health begins at home, in your neighborhood, in your environment. It starts way before you walk into a doctor’s office,” she said. Okwu described Roe as “really just the floor and there’s so much to do to make sure everyone has access to health care.”  

“All of this is connected,” she said, and “if we don’t make connections, we’re really missing part of the story.”

At the national level, “there is no quick fix,” but federal policies can try to mitigate the harm, Schneller said. For example, the Department of Justice put out guidance that the abortion pill pre-empts state laws and has indicated that it will protect people’s right to travel for an abortion.

The Women’s Health Protection Act, which would provide a statutory right to access abortion, was passed by the House of Representatives, but the Senate voted it down. The Senate also defeated a right-to-contraception bill and a right-to-travel bill.

“It is important that all of the levers of government are trying,” she said, because “we are in a crisis, chaos moment.”

King said that 86% of Hope Clinic patients are now coming from out of state. Amid the confusion and misinformation, she said, patients are worried about criminalization. Multiple barriers to abortion access “were there before the decision, and now they’re insurmountable,” she said.  

“We knew that marginalized communities would be the most affected” by the decision, Okwu said. The ripple effect is societal, and “if we really care about families we have to be thinking about these barriers.”

But the current moment offers “an opportunity ... to really think about what it means to truly be healthy, and to thrive … knowing that our fates are connected,” she said.

The program, which was moderated by Aracely Muñoz, director of the Lawyers Network at the Center for Reproductive Rights, was sponsored by the Section of Civil Rights and Social Justice.