Experts explored the new legal landscape of reproductive health care in America after the Supreme Court’s decision to strike down Roe v. Wade, during a webinar hosted by the Brookings Institution on Tuesday.
One of the major implications of the Dobbs v. Jackson Women’s Health Organization decision is that it will exacerbate health inequalities, said Camille Busette, PhD, a senior fellow in economic studies and governance studies at the Brookings Institution.
In a recent blog post, Busette and colleagues wrote that the Dobbs decision would “not only restrict access to reproductive health care, but will also fuel a public health syndemic, characterized by disease clusters that are shaped by social, economic, and political determinants that lead to health inequalities and injustices.”
A “syndemic” can result in “very poor life outcomes, very poor well-being outcomes” and “very poor outcomes in general for children who live in those communities,” Busette noted during the webinar.
She pointed out that most of the states that have implemented “trigger bans” — laws banning abortion that went into effect upon the reversal of Roe — and those considering them have “some of the lowest child health outcomes and well-being outcomes in the country,” a trend that will only be accelerated by this decision.
For the U.S. as a whole, Busette predicted the emergence of “a permanent subclass of … low-income people and communities of color who are going to be not only lacking access to reproductive health care … [but] all kinds of other healthcare … and then you’re going to have children who grow up in these … communities that have low access to all sorts of opportunities, in addition to healthcare.”
“And … you’re going to, simply, for generations just repeat the cycle of generational poverty, low [economic] mobility, and everything else that comes with that,” she added.
Interstate Travel, Medication Abortion
Bernadette Meyler, associate dean for research and intellectual life at Stanford Law School in California, highlighted the specific challenges of navigating the range of abortion laws in different states.
One route for states penalizing women for having abortions is through civil liability, in which a private person brings suit against another person who received an abortion or another person who performed the abortion or was involved in the process. The Texas law, Senate Bill 8, is one such example.
The concern is that if a physician in California was to perform an abortion for a person traveling from another state that penalizes abortion, such as Texas, there could be a lawsuit and legal questions around whether the courts could “exercise jurisdiction” over that doctor, Meyler said, even though California specifically passed a law stating that individuals performing abortions or involved in abortions are exempt from “judgments or the application of judgments” rendered in other states.
She anticipates lawsuits around the degree to which California can exempt itself from the “full faith and credit clause” of the Constitution, which calls for states to respect the judgments made in courts from other states.
For states that have taken a different route — imposing criminal penalties on women who seek abortions out-of-state or those providing abortions to women from out-of-state — there are also questions whether laws can apply “extra-territorially,” or outside the individual state in which they passed.
“So, if … someone is performing an abortion in California, and that’s been criminalized in Texas, there would be serious questions about whether they could be tried in Texas,” Meyler noted, given that the Sixth Amendment holds that criminal defendants have the right to a trial “in the vicinity of the crime.”
As for medication abortion, Meyler pointed out that the FDA has said that this medication can be shipped across state lines for the purpose of completing an abortion, which may preempt state regulation. “That’s going to be another … ongoing legal battle,” she said.
No such cases have been filed since the Dobbs decision, but one ongoing case in Mississippi, GenBioPro v. Dobbs, is exploring the question of preemption and will likely intersect with efforts by the Supreme Court to “cut back on the administrative state,” Meyler said.
Pro-Choice States Fight Back
A third panelist, Ariana B. Kelly (D) of the Maryland House of Delegates, stressed that pro-abortion rights states must decide how to address the increased need for abortion care for residents and out-of-state visitors, as well as the surrounding stigma.
“The anti-choice or pro-forced birth movement really has worked to stigmatize both abortion care and also those people who provide abortion care” through “legislative terrorism,” she noted. The main objective of certain anti-abortion states writing new laws that penalize people seeking abortions in other states isn’t necessarily to prosecute them, but to raise questions around whether prosecution is possible, which is a “terrorist act.”
“It creates fear among patients who might want to travel, and among clinicians who might be working in a safe state, but [are] terribly afraid that civil or criminal judgment is going to come after them,” she said.
To address this problem in Maryland, Kelly helped pass the “Abortion Care Access Act,” which helps to eliminate financial and logistical barriers to accessing care and went into effect on July 1. This law amended the state’s existing abortion care law, which codified the protections of Roe v. Wade 30 years ago.
The new law states that advanced practice clinicians — including nurse practitioners, physician assistants, and nurse midwives — can provide medication abortion, an action she hopes every pro-abortion rights state will take.
Around 15 states have already passed similar laws, she noted.
Maryland’s law also requires insurance coverage for abortion without cost-sharing, which can delay care and create stigma, including for Medicaid beneficiaries, and established a “first-in-the-nation clinical training program” investing $3.5 million annually to train doctors and other advanced practice clinicians, Kelly explained.
With 44% of residency slots in states that are expected to either ban or restrict abortion, according to a recent study, it’s important that states like Maryland close that gap, she said, and that “other states are following suit.”
The next big step will be adding “reproductive liberty” to the state’s constitution — a measure that passed the House and which Kelly expects will pass the Senate this year, before moving to a state-wide referendum.
Vermont, California, New York, and Illinois are looking to pass or have passed similar measures.
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