Sunday marks the 50th anniversary of the 1973 Roe v. Wade ruling by the Supreme Court that legalized abortion nationwide. But it’s also the first anniversary after the ruling was overturned last June, when the high court determined in Dobbs v. Jackson Women’s Health Organization that abortion access wasn’t protected under constitutional law. Since then, the issue has been left up to the states to decide.
As of Jan. 20, there are 14 states where abortion is unavailable, according to the Guttmacher Institute, a research organization that supports abortion rights.
“There are about 75 million women of reproductive age, from 15 to 49, in the country. And in these 14 states where abortion is unavailable, that affects nearly 18 million women of reproductive age,” Elizabeth Nash, a policy expert at the Guttmacher Institute, told Yahoo News.
A patchwork of abortion restrictions and bans are shaping the post-Roe landscape in the U.S. since it was overturned.
“Over the past seven months, it has been a roller coaster around states banning abortion,” Nash said. “Some states [have had] their abortion bans blocked by courts; other states have been able to enforce their bans.”
While restrictions on abortion have been implemented, progress has also been made to gain abortion access. Nash spoke to Yahoo News about where the state of abortion access currently stands and what to look out for in 2023. (Some answers have been edited for length and clarity.)
Yahoo News: Since the overturning of Roe v. Wade, how has abortion access changed?
Elizabeth Nash: We’ve really seen a deterioration in access across a large part of the country, particularly the South, the Plains and the Midwest, where as of Jan. 20 we have 14 states where abortion is unavailable. And then along the coasts and in states like Illinois, we’ve really seen policymakers step up to expand access. So we're really seeing the political fault lines coming to what is happening with abortion.
What are some examples of abortion bans and restrictions that have been put in place?
A number of abortion bans are in the South, and that means that these states are next to each other, meaning someone has to travel much further than one state over — they may be traveling across three or four states.
When we're talking about these states where there are abortion bans in place, many of them do have some exceedingly limited exceptions. And these exceptions do not provide meaningful access in any way, because it’s very difficult to meet the criteria. These exceptions are narrowly tailored, and the penalties are so steep that providers simply cannot provide care even if you meet the criteria. Someone has to become, for example, extremely ill in order to obtain an abortion.
For providers, the penalties are very steep. They involve jail time and fines and potentially loss of license. If they were to provide an abortion under the exceptions, they're really putting their livelihoods at risk.
On the flip side, what are some examples of abortion protections that have been enacted?
As abortion rights fall at the federal level, we saw states start to step up, and 77 abortion protections were enacted in 2022. That’s the highest number ever.
The types of protections that are put into place are policies and programs like funding abortion to help people get care and expanding the types of clinicians that can provide abortions.
Some states have also put in place legal protections for providers and patients so that care remains available. These legal protections are things like preventing an abortion-ban state from prosecuting a provider in an access state; not requiring the access state to help with an investigation of a provider; preventing extradition and preventing summons and subpoenas from being issued.
What legal action has been taken at the state level to expand abortion access, and what should we expect in 2023?
In South Carolina, the state Supreme Court just struck down the six-week abortion ban, saying that privacy rights in the state constitution include abortion. This is a very important case because it means that the six-week ban is not going into effect and that abortion will remain available in South Carolina. The state has a very conservative Legislature that is coming into session, and we’re anticipating they will try to adopt more restrictions on abortion.
We may see similar outcomes with other abortion bans under other state constitutions. We have cases pending in states like Utah and Wyoming, for example, so there's a lot more to come on abortion bans and the courts and legislatures as we go into legislative sessions after the fall of Roe.
What’s ahead for medication abortion access?
Because abortion pills can be mailed and you can access them through an online platform, abortion opponents are paying attention. We're expecting that we will see more restrictions debated and enacted at the state level on medication abortion, despite the fact that the Food and Drug Administration has rolled back some of their restrictions on abortion pills. They are now also in the process of setting up pharmacy access for abortion pills, and that is fueling more restrictions at the state level on medication abortion.
What should we expect in 2023 regarding further restrictions on abortion?
We’re going to see a lot of experimentation when it comes to legislation being introduced on abortion. We will see which trends stick and which ones don’t. We're anticipating that more states are going to seek to ban abortion. We’re anticipating that states that have banned abortion will try to tighten the screws on abortion access further. And then we’re expecting the progressive states to continue to step up and expand access.