Briefing

The end of Roe v. Wade?

With the Supreme Court poised to revisit the landmark ruling this fall, at least 22 states are readying to outlaw abortion

With the Supreme Court poised to revisit the landmark ruling this fall, at least 22 states are readying to outlaw abortion. Here's everything you need to know:

Is Roe v. Wade at risk?

Many legal experts think so following the Supreme Court's 5-4 refusal this month to block a new Texas law that bans most abortions after six weeks of pregnancy. "Any court that took the right to abortion seriously would have stayed this law," said Florida State University law professor Mary Ziegler. "The real question is how and when the court overrules Roe." The court may eventually knock down the Texas law on constitutional grounds, but there will be no shortage of opportunities for it to chip away at Roe. Following Justice Amy Coney Barrett's confirmation last fall, which gave conservatives a 6-3 majority on the bench, GOP-led state legislatures passed a slew of abortion restrictions aimed at triggering legal battles that will land at the court. In the first seven months of 2021 alone, 90 new restrictions were enacted, more than in any year since Roe was decided in 1973. Some court watchers think the justices could upend long-standing precedent that a state may not ban abortion before fetal viability — usually adjudged at 24 weeks of pregnancy — when they hear arguments this fall over a Mississippi law banning nearly all terminations after 15 weeks.

Has the abortion rate changed recently?

It's been in steady decline since 1990, when a post-Roe high of 1.6 million abortions were performed in U.S. clinics. That number dropped to about 1 million in 2011 and 862,000 in 2017, according to the Guttmacher Institute, a research organization that supports abortion rights. New restrictions contributed to the decline, but they weren't the central driver, because 57 percent of the drop in terminations from 2011 to 2017 occurred in 18 states that didn't implement new barriers. Instead, a combination of factors likely explains the decline. An unknown number of women might be taking abortion pills they ordered online and so aren't showing up in the official tally. Abortions may also be dropping because fewer women are getting pregnant in the first place. Contraceptive use has increased in part because the 2010 Affordable Care Act expanded access to health care, which means more women can get prescription IUDs and contraceptive pills. Ushma Upadhyay, a reproductive health expert at the University of California, San Francisco, notes that data suggest that the most fertile group of Americans, young people ages 18-24, "are having sex less" and so are having fewer unplanned pregnancies.

Where is access being restricted?

Nearly 600 abortion restrictions have been passed at the state level over the past decade, most of them in the South, the Midwest, and the Plains. Thirty-three states now require women to receive pre-abortion counseling, which can include speculation about when a fetus can feel pain or the supposed link between abortion and breast cancer, which is not backed by any scientific evidence. Twenty-five states have a waiting period, usually 24 or 48 hours, between counseling and termination. In Kentucky, doctors must perform ultrasounds and make women listen to the fetal heartbeat before an abortion. Thirteen states regulate the size of corridors and/or procedure rooms at abortion clinics, and many have complex rules for licensing physicians and technicians. Anti-abortion lawmakers say these policies ensure women's safety; critics call them a cynical attempt to regulate clinics out of existence.

Have many abortion providers closed?

The number of independent abortion clinics in the U.S. has dropped by a third in recent years, from 510 in 2012 to 337 late last year. In at least 16 states, 95 percent of counties lack an abortion clinic; Missouri, North Dakota, South Dakota, West Virginia, Kentucky, and Mississippi have only one remaining abortion clinic each.

Does prohibition stop abortion?

History suggests not. In the 1950s and '60s, an estimated 200,000 to 1 million illegal abortions were performed each year in the U.S. Wealthy women would head abroad to get a termination or pay off a physician; poor and desperate women visited back-alley abortionists or attempted terminations at home, poking knitting needles or coat hangers into their wombs, or having their cervixes filled with Lysol. Fatalities were common and in some parts of the country abortion was the leading cause of maternal death. Worldwide, abortion rates are highest today in countries with strict abortion bans, possibly because those nations also restrict contraceptive access. In the U.S., the abortion rate is about 11 per 1,000 women of childbearing age; in Mexico — where the Supreme Court last week decriminalized abortion — it's 34 per 1,000.

Could abortion become illegal in the U.S.?

Ten states have "trigger" laws in place that would outlaw abortion the moment the Supreme Court overturns Roe, and another 12 states are thought likely to pass new bans. About 100,000 fewer legal abortions would be carried out each year if Roe were scrapped, according to a study by Middlebury College. Forty-one percent of women of childbearing age would see their nearest abortion clinic close, and they'd have to travel an average of 279 miles to reach a facility, up from 35 miles today. But in more than half of the U.S., access to legal abortion would likely be unchanged. "A post-Roe United States isn't one in which abortion isn't legal at all," said Caitlin Knowles Myers, an economist at Middlebury. "It's one in which there's tremendous inequality in abortion access."

Abortion goes underground

An underground railroad of sorts is ­developing to help women in red states travel to ­abortion providers or illegally obtain abortion pills. The national nonprofit Plan C sent a truck across Texas this month bearing an illuminated advert that read "Missed period? There's a pill for that." AID Access, an online clinic that provides ­physician-supervised abortion, is selling abortion pills to Texans for $105. These groups are reminiscent of pre-Roe initiatives like the Abortion Counseling Service in Chicago, which provided more than 11,000 illegal abortions from 1969 to 1973. Recent abortion restrictions have also created surging demand at abortion providers near state borders, such as the Hope Clinic for Women in Granite City, Illinois, where half the patients are Missourians. "If Roe goes down," said Plan C co-founder Elisa Wells, "there are always going to be ways to access abortion."

This article was first published in the latest issue of The Week magazine. If you want to read more like it, you can try six risk-free issues of the magazine here.

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