What Abortion Access In The U.S. Looks Like Post-Roe Decision

History will remember 24th June, 2022, as the day the U.S. Supreme Court decided people actually don’t have a right to choose abortion without excessive government restriction. A majority opinion confirmed the overturning of Roe v. Wade. Now, the legality of abortion is in the hands of states — and more than half of them will likely essentially ban or severely restrict abortion.

Justice Samuel Alito wrote the majority opinion, deciding: "The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives."

The five other conservative judges on the high court signed on, including Chief Justice John Roberts, who, during the cases' oral arguments, seemed to want to make the still-devastating move of simply gutting Roe, rather than fully overturning it.

All three liberal justices dissented. "Whatever the exact scope of the coming laws," the dissenters wrote, "one result of today's decision is certain: the curtailment of women's rights, and of their status as free and equal citizens.”

“The majority would allow States to ban abortion from conception onward because it does not think forced childbirth at all implicates a woman’s rights to equality and freedom,” wrote Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Since the decision dropped, there’s been immediate outcry about how this will roll back rights, increase abortion stigma, and change lives — or in some cases, end them. “The fact that six Supreme Court justices, who’ve never had abortions, get to decide what’s best for all of us who have had — and will need— abortions is a disgrace,” says Renee Bracey Sherman, executive director of We Testify. “They will never know our names. They will never know our stories. Yet, they get to decide what’s best for us, our families, and our futures.”

Although the news is absolutely devastating to many, it’s no surprise. Activists and experts predicted this would happen even before a draft of the decision was leaked in early May. Not only did it warn that states could ban abortion (even from the moment of fertilisation, having potential implications on some forms of contraception and fertility treatments), the draft decision had Fourteenth Amendment implications that could impact future rulings on issues such as same-sex marriage and relationships, interracial marriage, and birth control. This one still does, and a concurring opinion from Justice Clarence Thomas specifically said he believed such decisions should be revisited.

The original draft also quoted Sir Matthew Hale, a 17th-century English jurist who wrote extensively about the law and whose work has been incredibly damaging to women and people for centuries. Scepticism around rape and the idea that a person can’t be sexually assaulted by their spouse tracks back to him, as do the Salem Witch Trials. And yes, he's still quoted in this official decision, showing how the court is relying on men from history with these views in making its decision.

Abortion hasn’t always been accessible to everyone, but it has been a legal right. This changes that and will have catastrophic consequences, experts say. “I’ve said before that Roe has always been ‘the floor not the ceiling,’ but you still have to have the floor,” Marcela Howell, president and CEO of In Our Own Voice, told Refinery29 in a conversation about the decision before it came down. “The court has now demolished the floor and left women with little to stand on when it comes to their reproductive rights.”

Meanwhile, some anti-abortion activists are celebrating. Americans United for Life put out a statement titled: "A New Day at Last: U.S. Supreme Court Reverses Roe v. Wade."

Right now, we’re living through a moment some would have said was unthinkable (but that some who were paying close attention warned about) in the years after Roe and the later Supreme Court decision Planned Parenthood v. Casey (the latter affirmed the right to abortion in Roe, but still allowed states to implement more regulations around it — it was also overturned). Yes, this is a moment that will have serious health, economic, and general implications that impact everyone, but especially folks who already had a hard time accessing abortion — those in rural areas, those with lower incomes, people of colour, and those in states where abortion will be banned.

Yes, this frightening, life-changing moment is here. Here’s what you need to know — and what you can do.

That depends on where someone lives. Twenty-six states are certain or likely to ban abortion now that Roe v. Wade has been overturned, leaving more than 36 million women of reproductive age without care, according to Planned Parenthood. And in some cases, providers will have to stop performing abortions swiftly. Like, now.

Thirteen states have so-called “trigger laws” (meaning abortion bans that are “triggered” into effect by Roe’s fall). For example, Kentucky, Louisiana, and South Dakota have laws that go into effect the moment the decision is overturned. Meanwhile, Idaho, Tennessee, and Texas’s laws delay the “effective date” of the abortion ban by 30 days, which means people can still access abortions and keep their appointments there for a month (well, in Texas, if they’re less than six weeks pregnant, as the vigilante law S.B. 8 essentially bans them after that point).

Other states with trigger laws — like Arkansas, Mississippi, Missouri, North Dakota, Utah, and Wyoming — require government certification before they go into effect. “So the attorney general or governor has to read through the Supreme Court’s decision and say, ‘Yes, it overturned Roe, so our trigger ban can go into effect,” says Elizabeth Nash, principal policy associate of state issues at the Guttmacher Institute. “That could take a couple of hours, or it could take a day or two. Many [trigger bans], though, will go into effect super fast. Could be 24, 48, or zero hours.” In the case of Missouri, it's already happened. The state's attorney general and governor today outlawed abortion after eight weeks, with some medical exception, but none for rape, incest, or human trafficking.

Then there are places like Ohio and Georgia, which passed abortion bans that are currently tied up in the courts. After Roe’s reversal, those cases would need to be resolved in some way before bans could go into effect. “The attorney general may have to ask the judge to dismiss the case because of the Supreme Court’s decision or ask the judge to uphold the ban,” Nash says. It’s unclear how much time that would take, but Nash predicts a couple of weeks to a month or two.

Meanwhile, some states are saying they want to call a special session of the legislature to pass an abortion ban, which could take longer because of sheer logistics. Once that happens, some states typically allow bills to be passed with an immediate effective date — like Oklahoma’s recent Texas-style, citizen-enforced abortion ban — but others require 90-day waiting periods. “The point is, there’s a lot that’s going to be happening after the decision.  While it’s not all super immediate — like within an hour of the decision not all clinics will have to go dark on abortion — it will come in stages. But we’re not talking years. We are talking hours, days, weeks, a couple of months,” Nash says.

Of course, there will still be states that continue to allow abortions. “Planned Parenthood health centres remain committed to providing safe and legal abortion wherever we are able to legally do so,” a spokesperson told Refinery29. But many advocates say these clinics will become overwhelmed by both in-state and out-of-state requests from about half the country. And one thing is certain: There will be people who are unable to access abortion at all.

We’ve compiled a guide on what abortion access will likely look like in each state.

The short answer is yes — abortion bans will also apply to medication abortion and telehealth abortion. But even before this, about 19 states already specifically banned the use of telehealth for medication abortion (in which a clinician prescribes you abortion pills through an online consultation and then those pills are mailed to your home). In these states, this means the provider and patient are supposed to be in the same room when the medications for the abortion (generally a combo of the drugs mifepristone and misoprostol) are prescribed — a deterrent for those who can’t take time off work or find a babysitter or who want to avoid an in-person clinical setting.

Meanwhile, many other states have already essentially banned telehealth abortion by proxy by requiring things like in-person ultrasounds and counselling ahead of administering the pill. More states have said they want to legislate telehealth abortions specifically and ban the medication from being shipped in their states.

Self-managed abortion (SMA) is typically done through a medication abortion regimen similar to telehealth abortions, but it’s different because a clinician doesn’t prescribe it. Instead, pills are typically ordered online. Abortion with pills has been shown to be generally medically safe and effective (the biggest risk is actually that of unfair criminalisation, Elisa Wells, co-founder of Plan C tells Refinery29). People get access to pills in a variety of ways — through the internet, via an alternate supplier like Aid Access, or online pharmacies and take them at home. Some cross borders to Mexico and buy the pills in actual pharmacies, others find pills through doulas in their communities, or get access to misoprostol that has been prescribed to a friend for another reason.

What does this mean for you post-Roe? Though many states could have full-on “bans” on abortion, the laws specifically target clinics and providers, not the people having abortions, Wells says. Many take this to mean SMA is in a legal grey area (though not all agree, and some legal scholars say the bans are for all kinds of abortions), save for the three states that have laws on the books specifically targetting SMA: Oklahoma, South Carolina, and Nevada.

“We anticipate that the fall of Roe and the enactment of trigger laws in many states will cause a state of pandemonium and fear regarding what can and can’t be done,” Wells says. “This will likely lead clinicians and law enforcement to erroneously report people who have self-managed their care, despite any lack of criminal activity. This is a violation of patient privacy and should not happen, though we know that it has already. No one should be criminalised for managing their own healthcare.”

It’s important to note, people have still been criminalised for accessing self-managed abortions in states across the country (including those that don’t have laws targeting SMA). This is why, as we said, it’s a good idea to do a little research to protect yourself if you choose this route.

If/When/How’s Repro Legal Helpline gives information and resources regarding legal rights for those self-managing abortions and tools or information on how to stay safe digitally when looking for abortions online through their Internet Safety Guide.​ The Digital Defense Fund’s guide to abortion and pregnancy privacy has a Mobile Abortion Privacy Quick Guide for abortion-seekers and the folks helping them. SASS – Self-Managed Abortion; Safe & Supported offers counselling and resources for self-managing abortion and answers some common medical questions. Plan C has myriad resources and can help you navigate access. 

On the rare chance someone needs medical support after they self-manage an abortion, they don’t have to say they took pills, experts say — the treatment is the same as that of miscarriage. 

Abortion is still protected in some states. To learn about access options, check out Abortion Finder and I Need An A. By entering information like a zip code and the date of your last period and your age, these sites will tell you about the laws where you live and also point you to the closest verified clinic.

Of course, in some cases, the closest available clinic will be states away, particularly in parts of the South and Midwest. In these cases, someone may need help. The National Network Of Abortion Funds can connect people to financial and emotional support either for the abortion itself or help pay for the travel, food, and childcare expenses that will be necessary.

Despite the fact that most Americans support access to contraception, the overturning of Roe could impact access to both IUDs and emergency contraception, and — in a worst-case scenario future — maybe even other methods. Some laws in certain states, like the one already in place in Oklahoma, will specify abortion is banned after the “point of fertilisation,” explains Rachel Fey, vice-president of policy and strategic partnerships at Power To Decide, an organisation aiming to prevent unplanned pregnancies. The thing is, fertilisation of an egg is not when pregnancy begins; according to the medical definition of pregnancy, the fertilised egg must implant in the uterus, and many fertilised eggs never implant. Moreover, it’s almost impossible to determine medically the exact moment when the egg meets the sperm and is “fertilised” before implanting in the uterus. Still, the medically inaccurate terminology in these laws may leave room for these methods of contraception to be banned (and might impact fertility treatments like IVF too).

“It's all a ‘ships passing in the night’ argument about when life begins,” Fey says. "It's a religious belief versus the medical definition of pregnancy. Although it’s a difficult fight to win, we shouldn’t have religious definitions, we should have what the medical community defines as pregnancy.”

The dissenting justices also noted this. "[The majority] says that from
the very moment of fertilisation, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs."

Less access to contraception will give people fewer options and may deprive them of an option they need or that is best for them. It will also make things worse for the millions who already live in “contraceptive deserts” and can’t access the birth control they need. Refinery29 extensively reported a few years back about these deserts and their impacts on people’s lives.

The decision has serious Fourteenth Amendment implications. This Amendment protects the right to privacy, a right which is also wrapped up in decisions that protect gay marriage, interracial marriage, and the right to contraception, all of which, like abortion, weren’t mentioned in the constitution (which was a main part of Alito’s argument for why Roe should be overturned). “All of these are predicated on a right to privacy, but when you pull the thread of the sweater for one of these cases, you endanger the rest of them,” Fey says.

There are plenty of ways to help. You can donate to an independent abortion clinic or an abortion fund, volunteer your time, go to protests, or if you live in America, call your Congress people, call your district attorneys and ask them not to criminalise people who self-manage abortion, and have conversations with those around you to destigmatise abortion. We Testify also has a great resource guide on how to help here.

“People always say there are three branches of government,” Rosann Mariappuram, executive director of Jane’s Due Process, told Refinery29 just days before the decision. “But someone told me the people are the Fourth Branch. So anyone who sees the decision and feels scared or hopeless — know you have power, even when it doesn’t feel like it.”