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What Happens Without Roe?

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Nearly one year ago, the Supreme Court announced that it would consider a 15-week abortion ban out of Mississippi, stirring concern that Roe v. Wade had just been stamped with an expiration date. Thanks to the Trump administration’s appointment of Justices Amy Coney Barrett and Brett Kavanaugh, the court’s majority skewed not just Republican, but ideologically conservative. Oral arguments in the case, peppered with medical fallacies and political misinformation, deepened misgivings. For months, reproductive-justice advocates have expected that the Court would either overrule or gut Roe, leaving it up to the states to decide when and whether to allow the procedure. In that landscape, the Guttmacher Institute — a prominent reproductive-health research and policy organization — predicted that abortion would be explicitly or effectively outlawed across more than half of the country.

Before Monday night, most people assumed we would wait until June to hear the final verdict. Then, around 8:30 p.m., Politico published a leaked draft majority opinion written by Justice Samuel Alito, ruling that “Roe was egregiously wrong from the start.” The Court has since confirmed the opinion’s authenticity, and while it claims the draft is not final, the 6-3 majority appears set to overturn not only Roe, but Planned Parenthood v. Casey, which previously affirmed its terms.

The ruling does not mean the end of abortion in the U.S. — the procedure remains legal, and both providers and support networks have long been preparing for the aftermath of Roe — but it is nonetheless shocking, even for those who knew it was coming. “It’s a weird feeling,” says Elizabeth Nash, who leads the state issues team at the Guttmacher Institute. “This is what we were expecting, yet it’s still a gut punch.” Even though advocates have been sounding the alarm bell for years, few states have matched the urgency of the moment. While more than a dozen have codified abortion protections, only a handful have turned their attention to access: California, for example, is seeking to become a “sanctuary” for displaced, out-of-state patients, and has blocked out-of-pocket insurance costs for the procedure; in response to new restrictions in Idaho, Oregon’s legislature recently approved $15 million in support for abortion providers; in New York, lawmakers are considering measures that would (among other things) protect providers from extradition by other states. Realistically, Nash says, the impending catastrophe demands holistic investment in abortion and pregnancy services. Blue and purple states need to account not only for their own residents, but for people in regions where abortion has been taken off the table.

“We do not have the health care or social services safety net to handle what will happen when people become pregnant, don’t want to be, and are forced to carry to term. We just don’t,” Nash says. In 2018, the maternal mortality rate in the U.S. was about twice that of comparably wealthy countries, and it’s only gone up since then, with 23.8 deaths per 100,000 live births in 2020. (Among Black women, that was more like 55 deaths for every 100,000 live births.) Many of these fatalities can be explained by a prohibitively expensive health system that boxes low-income people out of medical care. On top of that, there’s an overarching lack of programs parents need — paid leave, universal postpartum Medicaid expansion, and affordable child care, for example — to help them provide for their children and themselves. “And the states that are looking to ban abortion are generally the states with the weakest safety nets,” Nash adds. “It’s like watching a car crash happen.”

I think the biggest question right now is this: What does the post-Roe landscape look like?
We’ve estimated that 26 states are certain or likely to ban abortion soon after a decision that overturns abortion rights. Thirteen of these states have trigger bans; some of those trigger bans go into effect immediately, some have a 30-day waiting period, and some require certification by the attorney general or governor. For these states that need certification, and for states that have court cases pending on a total or six-week abortion ban, they just got a jump start. The Supreme Court just handed over everything these attorneys general need to get their ducks in a row for the day the decision comes out. The timeline is being sped up. For the progressive side, hopefully this will kick-start more efforts to ensure access is available for abortion.

I’m hoping that’s the case, and I also find myself worrying about the Court’s unwillingness to challenge the vigilante enforcement mechanism, as well as states like Missouri, looking to legislate outside their borders. This makes me really concerned about the future of abortion funds in the states that need them most. They could definitely be implicated in “aiding and abetting abortion” category.
A decision that entirely overturns abortion rights does leave open the question of how far can states go. Can they try to prevent their residents from getting an abortion outside of the state? Is that really possible? Would they target practical support organizations specifically? I’m not sure what options states would have, but you do wonder if they might try to try to close those organizations down, because they’re helping people access care that the state has determined should be illegal.

Then there’s also the individual impact, like the travel-time increases you’ve projected for this landscape.
Helping people access care far from home is incredibly expensive and extraordinarily difficult, because you have so many logistics and all of these details have to fall into place. Getting time off of work, arranging for child care, being able to pay for travel and the abortion. All of these things have to fall into place in order to get people from their homes, to the clinic, and back. If 26 states ban abortion, look at Louisiana: That round trip would probably be 1,300 miles. Look at Texas: People in Texas have been going to states as far away as Washington and Maryland, and typically they’re driving. And now Oklahoma clinics are sending everyone to Kansas.

There is a sense sometimes that overturning Roe isn’t going to affect blue states. What’s your take on that? 
That’s a very parochial viewpoint. The clinic network does not have capacity to handle patients coming from other states. We’re beginning to see this through the experience of Texas, where some clinics in Colorado and Illinois are having weeks of delays to get an appointment. It does affect progressive states, but also there’s the larger picture — we need to defend human rights everywhere.

In an ideal situation, what would need to happen between now and the actual SCOTUS ruling to mitigate the worst outcomes?
We need to redouble our efforts to protect abortion at the federal level, and we really need progressive states to identify their gaps in access and fill them. That may mean spending money. They may have to support the clinic network, they may have to expand the number of providers, they may have to help people pay for abortions. I know that’s easy to say, “fix it,” but we’re in a crisis moment.

Nearly one year ago, the Supreme Court announced that it would consider a 15-week abortion ban out of Mississippi, stirring concern that Roe v. Wade had just been stamped with an expiration date. Thanks to the Trump administration’s appointment of Justices Amy Coney Barrett and Brett Kavanaugh, the court’s majority skewed not just Republican, but ideologically conservative. Oral arguments in the case, peppered with medical fallacies and political misinformation, deepened misgivings. For months, reproductive-justice advocates have expected that the Court would either overrule or gut Roe,...

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Claire Lampen

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