The Supreme Court of the United States (SCOTUS), in 1973, ruled unduly restrictive state regulation of abortion as unconstitutional in a landmark Roe v. Wade judgment. The SCOTUS disagreed with the plaintiff's assertion of an absolute right to terminate a pregnancy and instead tried to balance the right to privacy and a state's interest in regulating abortion using the principle of liberty established in the 14th Amendment to the US Constitution. This triggered a historical discussion on understanding the idea of 'Bodily Autonomy' embedded in the socio-legal fabric of the country. Since then, two other judgments passed in 1992 and 2016 have redefined provisions regarding abortion rights established in Roe v. Wade.
Two more judgements followed Roe which strong-armed access to abortion and reproductive care. The first of the two, known as Planned Parenthood of Southeastern Pennsylvania v. Casey, affirmed women's right to access abortion before fetal viability and revised the test used by courts to examine abortion laws in the future. For this, the court used a formalised but uncertain "undue burden" standard. The second judgment, Whole Woman's Health v. Hellerstedt, resolved the uncertainty with the undue burden standard by framing it as a balancing test.
Roe v. Wade is one of the most divisive judgments in American society. The nature of this division is simple—supporters of the judgment maintain that the decision recognised an ever-important fundamental right. At the same time, the opponents argue that the court invented a right that does not exist without any legitimate justification, even though abortion was common and legal in the United States until the 19th century when religious and scientific movements prompted governments to ban the practice.
Roe v. Wade is one of the most divisive judgments in American society. The nature of this division is simple—supporters of the judgment maintain that the decision recognised an ever-important fundamental right.
A polarised US has put Roe v. Wade in danger. Being a crucial precedent that guarantees privacy and bodily autonomy to millions of women, Roe has protected women's right to life and liberty against the rise of cultural and religious conservatism. The abortion rate in the country has declined from 29.3 percent in 1981 to 13.5 percent in 2017 despite the emergence of new, safer technology. Few judgments around the world have been as monumental as Roe v. Wade. However, such laws have not prevented 'anti-abortion' activists from spurring unnecessary legal restrictions and demonising a safe medical practice like abortion. Former President Donald Trump set up a conservative, pro-life climate in the legislative and judicial structure of the country. In just four years of his presidency, he curtailed federal funding for abortion care and nominated conservative judges who followed through with his goal to overturn Roe.
This coming November, a conservative Roberts Court will hear the Dobbs v. Jackson Women's Health Organisation case on abortion. The case surfaced due to a controversial 2018 Mississippi law that seeks to ban most abortions after 15 weeks except for in the case of severe fetal abnormality or medical emergencies.
Late in July 2021, the State went ahead and further filed a request to overturn the Roe precedent altogether, consequently nullifying the Casey v Planned Parenthood mandate, which prevented the states from imposing an undue burden on women before fetal viability (23–24 weeks). The State offers the court to decrease the scrutiny placed on state laws while advocating that pre-viability restrictions are not unconstitutional.
Such laws have not prevented 'anti-abortion' activists from spurring unnecessary legal restrictions and demonising a safe medical practice like abortion.
For the first time since Roe, the court will examine whether all pre-viability prohibitions on elective abortions are unconstitutional.
At the beginning of the worldwide pandemic last year, all states in the US banned "non-essential/non-emergent or elective" medical procedures. But while some states like New Mexico, Massachusetts, and Washington actively clarified family-planning suite, pregnancy-related visits, and abortion care as essential services which could not be blocked, several remained either vague or numb on the subject. When left open to interpretation, state officials in Alabama, Texas, Ohio, Oklahoma, Tennessee, Arkansas, Louisiana, West Virginia, and others took it as a moment of uplifting pro-life political agendas and banned some or all abortion care. It is not at all surprising that these historically Republican-led states have had some of the most restrictive abortion laws in the country. This preliminary restriction across 11 states severely affected the lives of 16.3 million women in the reproductive age group. The Guttmacher Institute additionally reported that over 33 percent of women faced difficulties accessing SRH care and birth control. This number was almost 10 percent higher for racial and sexual minorities. Although many of these are blocked by the courts, the disruption led to widespread incertitude.
Medication abortion accounted for around 40 percent of all non-hospital abortions in 2017. But out of the two drugs—Mifepristone and Misoprostol—that patients use, the former is subjected to a Risk Evaluation and Mitigation Strategy (REMS) programme by the Food & Drug Administration (FDA). This implies that the drug can only be dispensed by a certified healthcare provider and cannot be sold through pharmacies or mail-orders, ruling out the scope for telehealth in medication abortion. The stay-at-home orders coupled with the supply chain disruptions hindered vital access to time-sensitive drugs. The contraction was eased a year later, in April 2021, when the Biden administration removed in-person requirements all restrictions pertaining to mailing in these drugs. But it does not promise the same for a post-pandemic America.
The Health Affairs Journal estimated that around 4 million women who had accessed SRH care would lose their insurance due to job losses, affecting nearly one out of 10 women who typically access these services.
Despite the ease, Arizona, Montana, Ohio, Oklahoma, Indiana, and Texas are some of the states which passed legislation this year to effectively ban telehealth for medication abortion. Telemedicine allowed women to reduce the burdens imposed on them by restrictive policies which require multiple visits to clinics, which are often quite far and inaccessible. It also helps women draw the spatial boundaries for their abortion procedure and supports them in their right to privacy by avoiding negative social consequences. In a world where Roe v. Wade is overturned, extremely limiting regulations will make women fear prosecution while ensuring their well-being.
Recessions induced by the pandemic and difficulties in mobility and access will likely worsen other vital indicators related to maternal health. The pandemic's impact on job losses and insurance coverage has affected access to SRH care, as more women become uninsured and the clinics face a surge in demand. A nationally representative survey by the National Centre for Health Statistics during 2015-17 estimated that around 44.5 million women in the age group 15–44 years received some sexual or reproductive health care, and 57 percent of these women had insurance coverage tied to their own job or a family member's job. But with massive job losses due to the economic shutdown in the pandemic, women were disproportionately battered.
The Health Affairs Journal estimated that around 4 million women who had accessed SRH care would lose their insurance due to job losses, affecting nearly one out of 10 women who typically access these services. At least 1.2 million out of these 4 million women would remain uninsured, and 1.9 million are estimated to shift to Medicaid or similar services. The uninsured women and those that would shift to Medicaid would turn towards publicly supported clinics, which are already swamped due to the pandemic. An estimated 1.7 million additional patients would have to be supported by these clinics, putting substantial financial and logistical demand on them.
Figure 1: Change in the number of women accessing SRH care at publicly funded health clinics, prior to and during the COVID-19 pandemic; categorised by insurance status.
Source: Health Affairs JournalThe pandemic left women without much of a financial safety net in terms of their health. At such a time, rising trends in maternal and neonatal health spending are worrying. The Maternal Mortality Ratio increased from 14 per 100,000 live births in 1990 to 30 in 2017, placing it amongst the worst-performing countries in the high-income bracket. The following treemap indicates that while maternal disorders, pregnancy, and family planning care occupy a sizeable part of their health expenses, the most apical growth in spending has also been ascertained by nutritional deficiencies (7.36 percent) and maternal disorders (5.99 percent) from 1996 to 2016.
Figure 2: Healthcare spending by women in the prime child-rearing group (20–44 years) in the US (2016)
Source: Global Burden of Disease (2019)On a closer look at the top maternal mortality causes, late and indirect maternal deaths lead by unusually high numbers. In the highlight table below, the darker cells imply a higher number of fatalities, exhibiting that most maternal deaths in the age categories of 25–39 years are due to reasons as mentioned earlier.
Figure 3: Top Maternal mortality disorders in the US (2017)
Analysis: Author's own; Source: Maternal Health AtlasAnother critical SRH indicator, neonatal disorders, have also noted a significant surge of about 6.5 percent in healthcare spending for women of all ages.
The United States has approximately 75 million women of child-bearing age. If Roe were overturned, abortion would automatically become inaccessible to more than 50 percent of them. Some scholars believe that a post-Roe America would be "one in which there's tremendous inequality in abortion access," as Roe is upheld in very different ways across the country.
Many Republican-led states such as Texas, Georgia, and Idaho have passed a 'fetal heartbeat law,' which prohibits abortion once a fetal heartbeat can be detected. Some of these laws also seek to put abortion providers behind bars.
Ever since Trump held the most powerful seat in the US, his pro-life ambitions have taken deep roots. There is growing defiance against Roe. States like Alabama, Arkansas, Michigan, Mississippi, Oklahoma, and Wisconsin have unenforced pre-Roe abortion bans, which could come into effect if Roe were overturned. Wisconsin, for instance, passed a law in 1849 to make it a felony to perform an abortion. The State is already subject to many restrictions; women must make two visits to a doctor and wait 24 hours between them, and abortion isn't permitted after 20 weeks.
Similarly, many Republican-led states such as Texas, Georgia, and Idaho have passed a 'fetal heartbeat law,' which prohibits abortion once a fetal heartbeat can be detected. Some of these laws also seek to put abortion providers behind bars. None of these laws have yet been enforced, and the future of Roe v. Wade shall determine their fate. Texas's new abortion ban uses a somewhat tricky way of directly avoiding a court block by letting general citizens sue abortion providers beyond six weeks. Therefore, encouraging and incentivising anti-abortion vigilantes to anyone who aids medical termination of pregnancy in any way.
On a similar note, in anticipation of the fall of Roe, a record number of 90 anti-abortion state legislatures have been passed across the country this year alone. This is higher than the previous record of 89 abortion restrictions in 2011. A mighty 90 percent of these restrictions are believed to be hostile towards abortion rights, seeking to increase financial, logistic, and legal barriers to SRH care. In regions with a cluster of conservative states, abortion is becoming increasingly inaccessible.
Abortion continues to remain illegal or restricted in most parts of the world. Roe v. Wade is one of the most luminous stars of the second-wave feminist movement towards autonomy and privacy. As late Supreme Court Justice Ginsburg pointed out, a woman's reproductive right is her autonomy to decide her life's course and thus to enjoy equal citizenship stature. With an unwarranted rise in healthcare spending in SRH without respite in the risk of mortality, the burden on women is immense and unfair. Access to affordable and respectable reproductive health is as fundamental as a human right for women. In a world where Roe is overturned, women's rights over their lives and bodies—both would fall largely with the State. In a chaotic, pandemic-stricken world that is forcing women to fall back into their traditional gender roles more strenuously than ever, their bodies should not become ground for political contestation. Roe v. Wade must exist to enable people to imagine a world where their choices are empowered by the law, at the very least.
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Mona is a Junior Fellow with the Health Initiative at Observer Research Foundation’s Delhi office. Her research expertise and interests lie broadly at the intersection ...
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Kuber Bathla a student studying Bachelor of Arts at St Stephen's College University of Delhi
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