‘Chaos, Conflict, and Confusion’.
‘Chaos, Conflict, and Confusion’
One year after the US Supreme Court issued its decision to overturn Roe v. Wade, the state of abortion care in the country has descended into “chaos, conflict, and confusion,” says Nicole Huberfeld, a professor of health law, policy, and management at Boston University School of Public Health.
A version of this article originally published in BU Today.
In the year since the June 24, 2022, ruling, access to abortion and reproductive healthcare has splintered. Fourteen states—Idaho, Texas, Oklahoma, North Dakota, South Dakota, Louisiana, Arkansas, Missouri, Mississippi, Tennessee, Kentucky, Wisconsin, Alabama, and West Virginia—have outright banned abortion.
Another six states—North Carolina, Georgia, Florida, Nebraska, Utah, and Arizona—have put restrictive gestational limits on abortions, banning them anytime after 6 to 20 weeks. In five more states—Indiana, Montana, Ohio, South Carolina, and Wyoming—state courts have yet to determine the legality of proposed bans.
Meanwhile, abortion remains legal in 25 states (including Massachusetts) and Washington, D.C., and some of them have enacted shield laws to protect healthcare providers from out-of-state malpractice suits. The most recent of these is New York, where state legislators passed a law on June 20 to protect doctors who prescribe and send abortion pills to patients in states that have outlawed abortion.
“The decision to return this decision [over abortion access] to the people and their elected officials has initiated a period of almost unprecedented conflict between state laws,” says Huberfeld, the Edward R. Utley Professor of Health Law, Bioethics, and Human Rights at the BU School of Public Health and a codirector of the BU School of Law Program in Reproductive Justice (LAW Professors Aziza Ahmed and Linda McClain also codirect the program).
The high court’s 6-3 decision—split along its ideological divide—in Dobbs v. Jackson Women’s Health Organization held that the Constitution does not confer a right to abortion. The decision overruled the earlier, seminal abortion cases Roe and Planned Parenthood of Southeastern Pa. v. Casey, and turned over the authority to regulate abortion to individual state legislatures.
Even with so much turmoil already occurring, reproductive justice scholars and lawyers believe the worst is yet to come.
“There are certainly pockets of the country where abortion is still legal, and yes, many states stepped up and passed these shield laws, but as a general matter I don’t think we’ve hit rock bottom yet,” says Ahmed. “I think we are still very much in the downfall.”
This is not just a vague sense of doom and gloom. Many of the long-term effects of bans on abortion and access to reproductive health are as yet unknown, Ahmed and Huberfeld say.
In addition to the personal harm to pregnant people “and anyone, frankly, of reproductive age,” Huberfeld says, broader institutional trends are starting to take shape. Medical students are opting not to study in states that have restricted abortion or outright banned it, according to the American Academy of Medical Colleges, which collected data from the 2023 hospital matches of medical residency programs. Among future OBGYNs, this trend is even more pronounced, the data show.
“These are not just hypothetical situations anymore,” says Huberfeld, who predicted such a shift after the Dobbs decision was handed down. “We’re going to see a major medical brain drain in abortion-restrictive states, and that is already starting.”
The migration of medical providers—and medical students—will only serve to compound unequal access to healthcare for populations that are already underserved, she says. Very rural communities and communities of color that are already out of reach of fast, quality healthcare will become only more detached as doctors flee states where abortions are banned.
Additionally, those who stay must navigate murky, often contradictory guidelines about the sort of care they provide, and when. For example, the standard of care for a pregnant cancer patient who must undergo chemotherapy and radiation is to provide an abortion rather than exposing a potential fetus to such intense treatment.
“Now, oncologists don’t know what it means to work in states that severely restrict abortion,” Huberfeld says. “This has ripple effects far beyond abortions. The layers of confusion for healthcare providers are maybe the most unanticipated part of all this.”
McClain, BU’s Robert Kent Professor of Law, offers another example.
“We’re already seeing stories of people who are miscarrying and are told to go home, to wait to come back until they’re sick enough that medical personnel can be sure there will be no question about the exercise of their discretion,” she says. “That’s dreadful, in terms of outcomes.”
In states where abortions are banned or highly restricted, McClain says, “the threat is that the pregnant person disappears completely, and the only patient is the fetus. Dobbs invited this balancing act for states to draw the line between what’s at stake for the pregnant person and what’s at stake for a possible fetus.”
The question for McClain and her colleagues is: when will these stories of human suffering be enough to change the hearts and minds of legislators?
“When we think about why the Irish law changed, it was because legislators finally heard from women whom restrictive abortion laws affected,” says Ahmed, referring to the 2018 act that legalized abortion in Ireland. “That does not seem to be happening here.”