The future of Roe v. Wade is now in doubt as the 6-3 conservative majority Supreme Court signaled a willingness to roll back abortion rights. On Wednesday, the nine justices heard oral arguments in Dobbs v. Jackson Women’s Health Organization (JWHO), pertaining to a Mississippi law that would ban abortions after 15 weeks of pregnancy. This would be a direct challenge to Roe and nearly 50 years of precedent that holds that prior to fetal viability, the Constitution guarantees abortion rights. Should the court decide in Dobbs v. JWHO that some pre-viability bans are constitutional and/or overturn Roe, abortion rights could be left up to states. More than 36 million women—nearly half of women of childbearing age in the U.S.—as well as others who can become pregnant could lose access to abortion care.
But the Supreme Court doesn’t have to overturn Roe for people to be unable to exercise their right to abortion. As it stands now, even while Roe is still in force, the right to an abortion is more theoretical than actual for far too many in the U.S.
Abortion is a common, safe health care procedure. One in four women in the U.S. will have one by the age of 45 according to current projections. But abortion opponents have been chipping away at abortion rights since Roe, enacting over 1,300 abortion restrictions at the state and federal levels. One of the most severe is Texas’ recent SB 8 abortion ban. It outlaws abortion at as early as the sixth week of pregnancy, rendering abortion rights under Roe effectively meaningless. One out of 10 women of reproductive age in the U.S. live in Texas and have had their abortion rights effectively suspended by this law.
But it’s not just gestational age bans like the one in Texas that are putting abortion care out of reach. A whole gamut of restrictive state laws combine to restrict abortion access and render abortion rights under Roe effectively moot, from targeted restrictions on abortion providers (or TRAP laws) and other medically unnecessary requirements like mandatory counseling and waiting periods, to laws allowing health care providers to deny a person abortion care in the name of religion. Individually, all these laws are harmful, but as a new research brief “Beyond Roe” found, together they form a hostile environment that makes exercising abortion rights virtually impossible in many places across the U.S.
Abortion restrictions impose logistical and financial burdens on patients already facing systemic barriers to health care, deepening existing inequalities. For example, due to structural racism and income inequality, Black, Indigenous and people of color (BIPOC) have a higher likelihood of being eligible for Medicaid and other government health coverage compared to their white counterparts. This means they are disproportionately affected by the Hyde Amendment and insurance coverage bans excluding abortion care from coverage. These restrictions leave those seeking abortion services no other option than to pay for it out of pocket, a health expenditure many cannot afford.
Being denied an abortion or unable to access abortion care has long-term consequences for health and economic outcomes. The Turnaway Study, a 10-year longitudinal study of women seeking abortion care at 30 facilities across the U.S, found women who were denied an abortion were more likely to experience economic hardship and insecurity lasting years than women who received an abortion. It also exacerbates existing health disparities, including those that exist in maternal health.
Abortion restrictions lead to clinic closures, forcing people to travel longer distances to reach an abortion provider, which is associated with delays in care, lost wages and higher costs (for child care, transportation, lodging). This burdens not only patients, but also providers in neighboring states unable to meet the increased demand. In Texas, some patients are forced to drive almost 250 miles one way, across the state border, to access abortion services. But this isn’t a realistic solution for many.
We can no longer rely upon the Supreme Court to uphold Roe. Roe was never enough to safeguard abortion rights for all anyway. For that, we need to do more than to keep abortion legal on paper; we need to guarantee the practical ability to exercise abortion rights. That’s something Congress can do by passing new laws, two of which are currently pending. The Women’s Health Protection Act would ensure abortion access is a reality for all people, free from medically unnecessary restrictions and bans, no matter where they live. The Equal Access to Abortion Coverage in Health Insurance Act would repeal the Hyde Amendment and related abortion coverage restrictions.
Theoretically, at least for now, abortion remains legal in the U.S. But it’s imperative that we expand upon that right until everyone has access to abortion services, regardless of race, income level, zip code, gender identity, or immigration status. That’s true whether or not the Supreme Court strikes down Roe.
Bridget Kelly is director of research at the Population Institute, a nonprofit based in Washington, D.C., that supports reproductive health and rights