A woman’s ability to get on in life depends heavily on her ability to control her reproductive health. That is why almost all of the 38 countries in the oecd, a club of advanced economies, allow abortion on request in the first trimester of pregnancy, and often beyond. Across the world, laws increasingly reflect the principle that decisions on abortion are rightfully a woman’s to make. Most Americans agree, yet their country, which sets out to be a beacon for democracy and freedom, has this week taken a dangerous step towards oppression.
On June 24th the Supreme Court said it had voted to overturn Roe v Wade, the ruling that in 1973 declared abortion a constitutional right. The court has thereby torn up a right it granted almost half a century ago. In that time a consistent and clear majority of Americans have told pollsters they want Roe to stand. The price will be heavy, and it will fall overwhelmingly on America’s poorest women.
At a stroke, the court has in effect made abortion illegal in 13 states that have “trigger laws”, which automatically come into force or will imminently do so. Another dozen or so states are expected to dust off pre-Roe bans or pass new ones. About 36m women live in states in which the right to terminate a pregnancy has disappeared or is likely to do so soon.
The baleful consequences of ditching Roe are knowable, in part because they have been foreshadowed. Across the South and the Midwest anti-abortion regulations had hollowed out Roe. Six states had only one abortion clinic left. A majority of abortions are thought to take place in states that will not ban abortion now Roe has been overturned. Women in conservative states have for years had to make long journeys, at great financial and personal cost, to find health care that in most of the rich world is available free, close to home. Even so, the sudden disappearance of abortion provision in more than a dozen states will cause great harm.
In most rich countries abortion is embedded within the hospital system. In America, by contrast, it happens mainly in standalone clinics that specialise. Most are small businesses that lack the resources to up sticks and move across state lines. As a result they will shut.
The heaviest burden will fall on low-income women whose poor access to health care makes unintended pregnancies more likely. They will be forced to travel often hundreds of miles farther, at greater expense. Organising an abortion will become more difficult and time-consuming.
One of the perverse effects of ending Roe is that these obstacles will push abortions later into pregnancy and the later they happen, the more traumatic and expensive they become. Some women will fail to have an abortion at all. Research shows that women in America denied abortions experience a spike in financial hardship, including debt, bankruptcies and eviction. Overturning Roe may further increase America’s maternal-mortality rates, already the highest in the industrialised world.
The solution is obvious: America should reflect five decades of practice and the settled opinion of the majority by passing a national law that guarantees the right to an abortion. Legislation would always have been better and more robust than Roe. The case was shoddily argued, leaving the right it sought to enshrine open to repeated legal attack by a highly motivated minority. The resulting fight has poisoned politics and dragged the court into the partisan mire.
Yet the obvious is unattainable. The very polarisation Roe helped fuel means that today’s Senate is even less likely to muster the 60-vote supermajority needed to pass legislation than the Senate of the 1970s. Hence the second-best will have to do. Joe Biden’s administration should take urgent steps to safeguard the reproductive rights of American women.
That starts with better access to contraception. Increased use of long-lasting methods, like iuds, has helped cut the abortion rate dramatically. Yet America continues to have a higher unintended-pregnancy rate than many Western countries. During Donald Trump’s presidency, a rule that prevented clinics involved in abortions from receiving funding for Title X, a federal family-planning programme, sharply reduced access to contraception. The Biden administration has scrapped that rule, but some conservative states have tried to continue to defund groups that support reproductive health. That must stop.
The most powerful weapon in the fight to retain abortion access is one that did not exist back when the justices ruled on Roe. Abortion medication, a two-drug regimen that allows women to end pregnancies at home safely until 11 weeks, is cheaper and more practical than going to a clinic. In 2021 the Food and Drug Administration (fda) dropped a requirement that forced a woman to collect one of the pills in person from a health-care provider.
The use of abortion medication has risen. Yet the fda still puts unnecessary obstacles in the way. Those who want to prescribe the drug must register as certified providers; patients must sign an agreement. Such conditions are not applied to some more dangerous drugs. They should go.
Were the fda to allow the sale of abortion pills over the counter, it would also free up space in oversubscribed clinics for women who have to travel and who need a surgical abortion. It would also let women in states where abortion is banned travel to ones where it is legal and buy the pills without an appointment. Women, especially in states that have restricted use of abortion medication, already order the pills from pharmacies overseas. Using American pharmacies would be safer.
The wrong sort of exceptionalism
Such measures can mitigate the damage the Supreme Court has done this week, but they cannot reverse it. With the annulment of Roe, the court has caused a triple injury. It has harmed its own standing, by embracing a radical position on established law. It has harmed the fabric of the union, by deepening the gulf between the states over fundamental rights. But most of all, it has harmed the lives of millions of blameless American women.■
