26 US states are likely to ban abortion to the fullest extent possible

After the US Supreme Court decision to overturn Roe v Wade, abortion bans in states such as Louisiana and Tennessee won’t include exceptions for cases of rape or incest

By Chelsea Whyte

Protesters gather outside the US Supreme Court on 24 June in response to the decision to overturn Roe v Wade

Rena Schild/Shutterstock

Abortion is set to be outlawed under most circumstances in more than half of US states following the Supreme Court’s decision on 24 June to repeal Roe v Wade, the 1973 landmark ruling that protected the right to an abortion. US President Joe Biden called the decision “a realisation of an extreme ideology and a tragic error by the Supreme Court”.

The decision was forecast when a leaked draft was released in May. Following the official ruling by the court, protests broke out in Washington DC and across the US.

The repeal is based on the Dobbs v Jackson case challenging a Mississippi abortion ban, which was upheld in a 6-3 vote by Supreme Court justices. They then voted 5-4 to overturn Roe v Wade. Writing for the majority opinion, justice Samuel Alito said: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.”

It will now fall to each state to decide. Thirteen states have so-called trigger laws set to ban the procedure in the case of Roe v Wade being overturned; in some states this has already come into effect while in others it will be enacted after 30 days or once signed off by an official. Several other states have abortion restrictions that were in place before 1973 that may now be enforced.

“Without Roe, 26 states are certain or likely to ban abortion to the fullest extent possible,” said Herminia Palacio at the Guttmacher Institute, a reproductive rights research group, in a statement.

In the dissenting opinion, justices Elena Kagan, Sonia Sotomayor and Stephen Breyer wrote: “With sorrow – for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection – we dissent.”

Their opinion states that this decision undermines bodily autonomy: “It says that from the very moment of fertilisation, a woman has no rights to speak of.”

The 13 states with trigger laws that ban abortion allow exceptions to save the life of the pregnant person, but most don’t include exceptions for rape or incest.

A survey conducted by Pew Research Center in March 2022 found that 61 per cent of people in the US say abortion should be legal in all or most circumstances. For those who say abortion should be against the law in most or all cases, 46 per cent say exceptions should be made if the health or life of the woman is threatened.

“Abortion is still going to be accessible in nearly half the country and we need to make sure patients are aware of that,” says Gabriela Aguilar, a doctor in New York who specialises in obstetrics and gynaecology. “We had a patient who had come to our clinic today from Florida, and as she was brought into the operating room and about to fall asleep she expressed fear and panic. She had gotten a notification about the decision and in an exasperated manner asked if she could still have her procedure.”

Aguilar says there are doctors and organisations dedicated to getting people to states where abortions are still legal and providing medications for self-managed abortions. “We’re devastated, we’re disappointed, but we will persevere.”

In response to the historic ruling, US attorney general Merrick Garland said in a statement that crossing state lines to receive an abortion remains legal, as does the ability of people or organisations to inform and counsel others about reproductive care available in other states.

He also stated that a commonly used medication for self-managed abortion is still legal. “The [US Food and Drug Administration (FDA)] has approved the use of the medication Mifepristone. States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.” In December, the FDA permanently authorised access to mifepristone via the post and with a telehealth appointment.

The repeal of Roe v Wade comes at a time when abortion rates are growing in the US. The Guttmacher Institute found that in 2020 the US abortion rate increased for the first time in 30 years, to about 930,000 abortions that year. “More than one in three of these abortions were obtained in states that are now certain or likely to ban abortion,” said Palacio.

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