The future of Roe vs Wade

“This is not a drill. Roe [vs Wade] is on the brink of being overturned,” said Kristyn Brandi, MD, MPH, at the 2022 American College of Obstetricians and Gynecologists Annual Clinical & Scientific Meeting.

During a lecture at the 2022 American College of Obstetricians and Gynecologists Annual Clinical & Scientific Meeting, 3 abortion care providers outlined the latest legislative changes to abortion care and illustrated the very real dangers of living in a post-Roe world.

The lecture featured Kristyn Brandi, MD, MPH, ob-gyn and complex family planning specialist from Montclair, New Jersey, Bhavik Kumar, MD, MPH, family medicine physician, abortion provider, and medical director for primary and trans care at Planned Parenthood Gulf Coast in Houston, Texas, and Ivana Thompson, BS, MD, ob-gyn and attending physician at Vanderbilt University Medical Center in Nashville, Tennessee.

Brandi was first to the podium and began with an homage to the original native peoples that lived on the land of San Diego where the conference was held. “We know that abortion restrictions disproportionately impact marginalized communities, such as Black, Indigenous, and other people of color. When speaking about marginalized people, it is important to understand your positionality within that history, including the land that we stand on. With that, we recognize that this talk exists on the land stolen from the Kumeyaay people, also referred to as Diegueño by the Spanish. They were the original native inhabitants of San Diego County, and we honor their legacy and contributions both past and present.”

Almost 9 months have passed since the Texas abortion bill—also known as SB 8—restricted abortions at around 6 weeks. Many states followed suit, with similarly restrictive laws spreading like wildfire. “We’ve tried so many times to solidify our talk, only to have to update it again to keep up with the latest restrictions on abortion access a few days later,” Brandi said.

Brandi took the audience through an exercise to demonstrate the impact such laws have on all ob-gyns, not just those in restrictive states. State-by-state, she asked providers to sit down once she called the state in which they practice, starting with the 21 states that would ban abortion automatically if Roe became entirely irrelevant. With less than 50 people standing, Brandi addressed the impact this could have on the neighboring states. Providers would be forced to bear the brunt of providing health care, not only to the state’s current residents, but the out-of-state patients as well.

“This is the likely case of what happens to abortion post-Roe,” Brandi said. Abortion care would become illegal in 26 states and providers in neighboring states could expect an outpouring of patients from those states to their own, which will likely flood the health care systems and delay care for everyone, she continued. “Make no mistake. Virtually all ob-gyns across the country have the potential to be impacted.”

How did we get here? Thompson joined Brandi on stage to offer an answer, sharing an overview of the country’s longstanding battle with abortion care that began with Norma McCarvey.

Roe vs Wade (1973)

Back in June of 1969, Norma McCorvey, also known as Jane Roe, discovered she was pregnant and wanted an abortion. She lived in Texas, where the law prohibited abortion except in cases of rape, incest, and to save the life of the mother, and her friends advised her to falsely assert that she had been raped. She planned to have an illegal abortion, but authorities shut down the facility a week prior to her appointment. Seemingly out of options, McCorvey hired lawyers that filed suit against the state of Texas, on the basis that she had a right to get an abortion in a safe medical environment in her home state.

The district court ruled in favor of Roe and Texas appealed to the Supreme Court. There, the Court upheld the ruling that established a trimester framework that dictated the level of involvement the state can have throughout stages of a woman’s pregnancy. The state may not regulate abortion in the first trimester, and that the decision is between the pregnant person and her doctor. In the second trimester, however, the state may impose regulations on abortion that are “reasonably related to maternal health,” Thompson said, “and in the third trimester, once the fetus reaches viability, the state may regulate abortions or even prohibit them entirely, so long as there are exceptions for medical emergencies.

The Hyde Amendment (1977)

The Hyde Amendment came next—a legislative provision barring the use of federal funds to pay for abortion care, except in situations of maternal life endangerment, rape, or incest. This primarily affects people who have publicly funded insurances. While there are some states where Medicaid does fund abortion care, those dollars specifically come from state funds and non-federal funds. Prior to the Hyde Amendment, Thompson said, federal dollars funded an estimated 300,000 abortions each year.

Planned Parenthood vs Casey (1992)

Planned Parenthood vs Casey followed in 1992, which was an attempt to undermine Roe by passing several abortion restrictions. It centered on the Abortion Control Act, passed in Pennsylvania in 1982, which contained the following restrictions:

  • A 24-hour waiting period
  • State-required specific counseling
  • Parental consent for abortion care
  • The woman must inform her husband about obtaining an abortion.

The Supreme Court upheld Roe but eliminated the trimester framework. They introduced “undue burden,” which is defined as any regulation that imposes a substantial obstacle preventing a woman from a from accessing illegal abortion. Planned Parenthood versus Casey paved the way for states to introduce more restrictions on first and second trimester abortion care, Thompson said. These restrictions became known as TRAP laws, or targeted regulations of abortion providers. “TRAP is an accurate acronym for these laws,” Thompson said, “because these laws are purposefully designed to trap providers, trap clinics, and to restrict the ability to provide abortions, not due to safety or health concerns, but just to prevent pregnant people from accessing care.

Thompson then arrived at Senate Bill 8—the Fetal Heartbeat Act—that went into effect on September 1, 2021, in Texas. As many ob-gyns already know, SB 8 restricts abortion after cardiac motion is detected, with no exceptions. It can only be enforced via private civil action, which means the state and state agents can’t pursue cases, but other citizens. “You can’t sue the patients who receive abortion care,” Thompson said, “but you can sue providers. You can sue those who support the act: clinic nurses, Uber drivers, all the people who might be involved in supporting someone accessing the care that they need.” SB 8 has since been used as a template for copycat bills across the country, in states such as Idaho, Oklahoma, and Missouri.

Thompson reflected on her own experiences in clinical practice over the last year. “If Roe was reversed, I would not have been able to offer an abortion to a developmentally delayed, nonverbal patient who was raped by her brother and presented for care at 20 weeks. If Roe was reversed, I would not have been able to offer an abortion to a person who was sexually assaulted by a coworker in the field. If Roe was reversed, I would not have been able to offer an abortion to a person with a pregnancy complicated by a hypoplastic left heart, congenital diaphragmatic hernias with the stomach in the thorax, an unformed lumbar spine, and other anomalies.”

“These consequences are real. We need to prepare for life and medicine post-Roe,” Thompson said before passing the mic to Kumar.

As an abortion provider in Texas after SB 8, Kumar’s experiences offered an inside look at a world post-Roe and may be useful to prepare others for what lies ahead.

The impact of SB 8 is already being seen. New data from Planned Parenthood showed the impacts of SB 8 for patients and providers in surrounding states, including Oklahoma, New Mexico, Kansas, Colorado, and Missouri. Data were collected between Sept. 1 and Dec. 31 and included 34 of the 44 facilities providing abortion care in the US. It showed a nearly 800% increase in patients coming from Texas for abortion care—an average of 1400 people each month. It is worth noting that the research does not account for self-managed abortions, or abortions performed in other countries, such as Mexico. “This is a gross underestimation of the demand,” Kumar said.

As SB 8 stayed in effect, clinics in nearby states experienced longer waiting times. Some of the issues affecting delays, Kumar said, likely included higher volumes of people seeking care, staffing issues due to COVID-19, and a general difficulty in staffing clinics that offer abortion care.

Participants in the study also reported feelings of immense stress, loss of bodily autonomy and heightened economic insecurity. Kumar shared a quote from a participant, “I basically fell behind on my other bills, the internet, my car insurance, my credit cards—our insurance wouldn't cover it, even out of state. The person we spoke with at the hospital even took the effort to call our insurance company and they would not cover anything. It got to the point where we didn't have food and we couldn't buy food for our pets either for a week.”

The lecture ended with an empowering call to action, urging attendees to call their senators, advocate on social media, and even send letters to lawmakers in their state. For more resources, visit acog.org.

Reference

1. Brandi K, Kumar B, Thompson I. The Irvin M. Cushner Memorial Lecture: Impact of legislative changes on access to abortion. Presented at: 2022 American College of Obstetrics and Gynecology Annual Clinical & Scientific Meeting; May 6 to May 8, 2022.