Where abortion access would decrease if Roe v Wade was overturned

The Supreme Court’s decision on Monday to hear a case about a Mississippi law that would ban most abortions after 15 weeks could end up weakening or even overturning Roe v Wade. Depending on the ruling, legal abortion access could effectively end for those living in much of the American South and Midwest, especially those who are poor, according to an analysis updated this week.

In more than half of states, though, legal abortion access would be unchanged, according to the analysis, a version of which we first covered in 2019. (We have updated our reporting along with the analysis.)

“A post-Roe United States isn’t one in which abortion isn’t legal at all,” Caitlin Knowles Myers, an economist at Middlebury College and a co-author of the research, said in our earlier report. She obtained and analyzed the new data for The New York Times recently. “It’s one in which there’s tremendous inequality in abortion access.”

Today there is at least one abortion clinic in every state, and most women of childbearing age live within an hour’s drive or so of one, the analysis found. If Roe were overturned, abortion would be likely to quickly become illegal in 22 states. Forty-one percent of women of childbearing age would see the nearest abortion clinic close, and the average distance they would have to travel to reach one would be 279 miles, up from 35 miles now.

As distances to clinics increase, abortion rates decline, research shows. Women who can’t afford to travel to a legal clinic or arrange child care or leave from work for the trip are most affected. Also, remaining clinics would not necessarily be able to handle increased demand. A study from a different research team on the effects of abortion clinic closings in Wisconsin showed a similar relationship between increased drive times and the number of abortions performed at clinics.

Without Roe, the number of legal abortions in the United States would be at least 14 per cent lower, Ms Myers and her colleagues estimated. That could mean about 100,000 fewer legal abortions a year, they found. The number is impossible to predict precisely, because new clinics could open on state borders, and some people could order abortion pills by mail, or obtain illegal surgical abortions, which may be dangerous.

Ordering pills by mail has become easier during the pandemic: The Biden administration has said doctors can use telemedicine to prescribe pills that cause abortions early in pregnancy. The doctors can then mail the pills directly to patients, easing the usual requirement for an in-person visit. That could increase abortion access in states that continue to allow the procedure, but the policy is tied to the Covid-19 public health emergency, and is not permanent. States that seek to ban or regulate abortions could restrict telemedicine abortions, too, and many already do.

The Mississippi law that the Supreme Court will consider would ban most abortions after 15 weeks (women usually find out they’re pregnant after at least four weeks). That is about two months earlier than Roe and later decisions allow a ban (the exceptions are for a medical emergency or “severe fetal abnormality”). The justices will consider whether laws restricting abortions earlier than the Roe threshold of fetal viability are unconstitutional.

The court could decide to reaffirm Roe; or to chip away at abortion rights while upholding Roe; or to overturn it completely. Legal scholars said the appointment of Justice Amy Coney Barrett, who replaced Justice Ruth Bader Ginsburg last year, might have changed the calculus of what’s possible, as has the court’s decision to take this case. The decision is likely to be delivered sometime next year. In her confirmation hearings, Ms Barrett declined to give her views on abortion law.

If the Mississippi law is upheld, it will allow other states to enact or enforce similar laws. In the last few years, many states have passed laws limiting access to abortion. Governor Greg Abbott of Texas on Wednesday signed a bill that would ban abortion as early as six weeks into a pregnancy, and allow individuals to sue abortion providers who break the law. Analysts said that it was a new strategy intended to slow down abortion providers by forcing them to respond to lawsuits.

“I think it’s more likely now that we would see them frontally reverse Roe v Wade than even a year ago,” said Katherine Franke, director of the center for gender and sexuality law at Columbia. “But they don’t need to. They could certainly accomplish the same end by keeping Roe on paper, but they would have hollowed it out so entirely that it would give a green light to conservative state legislatures to enact laws that essentially overrule Roe.”

Anti-abortion activists and politicians who have sought the elimination of Roe have long pinned their hopes on this strategy, because passing abortion restrictions through Congress has proved difficult. Nationwide, a majority of Americans support legal abortion access in some or all cases. But in addition to restrictions based on time limits, as in Mississippi, states have passed laws that require abortion providers to have hospital admitting privileges; require women seeking abortions to wait for long intervals; or restrict the kinds of abortion procedures that are allowed.

“It would be a whole lot better for abortion policy if the states were allowed to have their regulations stood up and unchallenged,” Charmaine Yoest, a former president of Americans United for Life, said in our earlier report. “You would have the laws reflecting the folks in those states, and that’s what American federalism is supposed to be.”

Ms Yoest noted that not every state that would pursue new abortion regulations would necessarily ban the procedure.

Long travel distances are already a challenge for women in some areas. In parts of Missouri and Mississippi, where state officials have worked hard to limit abortions, many women live 250 or more miles from the nearest abortion clinic, far enough that their access wouldn’t be changed much if abortion were outlawed. In other parts of the country, like the Northeast and the West Coast, where there isn’t much support for abortion restrictions, abortion access is also unlikely to change.

Ten states have passed so-called trigger laws, which would automatically ban all abortions without Roe. An additional 12 states are considered highly likely to pass new abortion bans in a new legal environment, based on recent legislative action and state court rulings.

“In a post-Roe United States, greater power to regulate abortion is turned to the states,” Ms Myers said, “and state politics becomes even more important.”

The New York Times