Two years ago, the US Supreme Court overturned Roe v. Wade, ending the constitutional right to an abortion and setting off a fierce fight for reproductive rights at the state level. Abortion has emerged as a key issue in the 2024 election, and as access narrows in many states, reproductive freedom advocates are working to get measures preserving reproductive rights on the November ballot to let voters weigh in.
Two years after Roe v. Wade was overturned, 14 states have total or near-total bans on abortion, including Alabama, Texas, Idaho and Tennessee. Despite an increase in restrictive policies, the number and rate of abortions in 2023 hit their highest point in over a decade, according to a report from the Guttmacher Institute, a research and policy non-profit that advocates for sexual and reproductive health rights. The organization estimates there were more than 1 million abortions in the formal US healthcare system last year, a 11% increase from 2020. States without total abortion bans saw a 26% increase from 2020, according to the report.
The loss of abortion access in states with bans, the authors noted, was countered by “efforts on the part of clinics, abortion funds and logistical support organizations to help people…access care.” Nearly two-thirds of all abortions in 2023, about 642,700, were medication abortions – not including self-managed medication abortions outside of the healthcare setting, the report says. The authors note a steady increase since 2001, when medication abortions accounted for less than 10% of all procedures. Over the years, the US Food and Drug Administration relaxed some of the restrictions for use of the abortion pill, and access to the medication increased.
In 2016, the agency deemed the abortion pill safe to use up to 10 weeks into pregnancy, rather than seven, and expanded the pool of providers who could prescribe it. After the onset of the Covid-19 pandemic, the FDA allowed for the pill to be dispensed by certified pharmacies and through the mail, rather than just in healthcare settings.
Abortion policies have changed rapidly in many states since the Supreme Court’s decision to overturn Roe. Four states, California, Michigan, Vermont and Ohio, have since enshrined rights to reproductive freedom in their constitutions, while lawmakers in New York and other states implemented policies to protect abortion patients and providers. More than a dozen states passed abortion “trigger laws” ahead of the court’s decision, meant to take effect almost immediately in the event that Roe was overturned, and at least seven states without trigger laws have followed suit with restrictive reproductive health policies that critics say put patients in danger and leave providers at risk of civil and criminal liability.
Patients and providers have struggled to navigate a patchwork of sometimes hastily implemented abortion policies that include mandatory waiting periods to obtain an abortion in states including Arizona and Georgia, limits on Medicaid coverage for abortion, in states including South Dakota, and vague language around medical emergency exceptions to abortion bans in states including Texas. Lower courts have been asked to take abortion issues up in multiple legal challenges across states.
These policies have already had real-world effects. For example, one woman in Texas sued the state to access an abortion for a pregnancy that was threatening her future fertility. Another Texas woman was unlawfully charged with murder for using abortion medication to self-induce an abortion and spent two nights in jail before the charges were dropped.
Providers say that patients in states with abortion bans have been forced to carry pregnancies against their will, leading to compromised fertility and other life-threatening consequences. Last month, Florida replaced its 15-week abortion ban with a six-week ban, which falls before many women know they’re pregnant. The move was a major blow to reproductive access in the South, where Florida was a critical access point for people seeking abortions. Providers and advocates say the restrictive policies have created a reproductive care “desert” in the region.
More than 171,000 patients travelled for an abortion in 2023, according to the Guttmacher Institute. Many people who traveled to obtain abortions before Roe was overturned were going to states that now have total abortion bans, meaning people are now traveling farther distances – sometimes crossing multiple state lines – to access care, the organization noted recently. In just the first half of 2023, nearly 1 in 5 people who had an abortion – more than 92,000 people – traveled across state lines for abortion care, according to a December 2023 analysis from the institute.
As the abortion care landscape becomes more and more restrictive, Alexandra Mandado, president of Planned Parenthood in South, East and North Florida, says that remaining abortion clinics will struggle to absorb the increase in out-of-state patients. The Supreme Court recently rejected a challenge to access to the abortion pill, mifepristone, maintaining widespread access to medication abortion in a ruling that will allow for continued mailing of the pills to patients without an in-person doctor’s visit. Experts say abortion pill access could face additional legal challenges in the future.
The court is considering another case this summer dealing with medical emergency exceptions to abortion bans. In the case, the Biden administration sued the state of Idaho, where exemptions to its abortion ban are limited to life-threatening situations, arguing that federal law requires hospitals receiving Medicare funding to provide stabilizing care, including abortions, when a pregnant person’s health is in danger. In February, the Alabama Supreme Court ruled that frozen embryos are considered human beings and those who destroy them can be held liable for wrongful death, causing fertility clinics throughout the state to pause in vitro fertilization (IVF) treatments out of fear of legal prosecution.
As families across the state lost access to IVF treatments, lawmakers scrambled to meet the widespread demand for a fix. In March, the state passed a law aimed at protecting IVF patients and providers from the legal liability imposed on them by the state court’s ruling. While some services resumed, at least one of the state’s limited pool of IVF providers says it will halt services altogether by the end of the year, citing litigation concerns.
Experts have expressed concern that other reproductive care services, like contraception, are also on the line amid a swell of misinformation that some say is sown intentionally to create panic, like lawmakers conflating emergency contraception with abortion, for example. Most abortion policies implemented after the Supreme Court overturned Roe were directly triggered by that decision or handed down by lawmakers or state courts. In an effort to restore the issue of reproductive health access, organizers across the country have been working to get measures to enshrine reproductive health rights in state constitutions on ballots in November.
Colorado, Florida, Maryland and South Dakota have secured the measures on their state ballots, with New York and Nevada likely to follow suit. Organizers in at least seven other states are working to do the same. In addition to making it more difficult to challenge access to abortion services, organizers hope that the measures will allow voters to send a message to politicians about what they want.
