How Will Abortion Access Change?
Here are answers to some of the fundamental questions about how the Supreme Court’s decision to overturn Roe v. Wade will impact a person’s ability to obtain an abortion.
The United States Supreme Court overruled the landmark Roe v. Wade case on Friday, eliminating the constitutional right to abortion in a monumental recasting of abortion laws.
The decision, which echoed a draft that was leaked in May, strikes down Roe’s standard, which did not allow states to ban the procedure before the point at which a fetus can survive outside the womb, which experts say is about 22 to 23 weeks of pregnancy.
The ruling has abolished the constitutional right to abortion and leaves each state to set its own abortion laws. More than a dozen Republican-led states have legislation in place that would outlaw abortion in most cases immediately, while some states where Democrats are in power have moved to retain and strengthen existing abortion rights or expand on them.
Here are answers to some of the fundamental questions surrounding the latest changes, including where abortion will become illegal and where it will remain accessible by law.
Friday’s Supreme Court decision to overturn Roe v. Wade leaves the future of abortion in the hands of each state. Just minutes after the court ruling was announced on Friday, Attorney General Eric Schmitt of Missouri certified the state’s trigger law to effectively ban all abortions.
A law that came into effect in Oklahoma in May bans nearly all abortions starting at fertilization and makes exceptions only in cases where an abortion is necessary to save the life of the mother, or in cases of rape or incest that have been reported to law enforcement.
The court’s decision to overrule Roe v. Wade means other state laws will take effect. Some states will outlaw abortion immediately while others have laws in place that will keep access to abortion legal.
With the states now able to regulate abortion access, several states, including Kentucky, Louisiana and South Dakota, moved to ban abortion.
Missouri’s attorney general, Eric Schmitt, also certified the state’s trigger law to effectively ban all abortions just minutes after the ruling was announced.
According to the Center for Reproductive Rights, a group that closely tracks laws on abortion, the states that are expected to follow suit are Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Michigan, Mississippi, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, West Virginia, and Wisconsin.
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California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington, as well as the District of Columbia, have laws that preserve access to abortion, according to the Guttmacher Institute, a reproductive health research group that supports abortion rights.
Some states have also been positioning themselves as “refuges” for abortion rights, by offering support and legal aid to women who travel to their state for an abortion.
Gov. Gavin Newsom has said California would offer tax breaks to companies seeking to move from states where abortion may become illegal. In Oregon, the Legislature approved $15 million in March to help pay for abortion expenses for patients coming from outside the state.
In New York, Democratic lawmakers have been working on a package of bills that would strengthen the state’s already robust abortion access laws. Some of those efforts have been focused on shielding providers from liability for patients coming from states where abortion has been criminalized. Others seek to help patients who travel to New York for reproductive health care.
Thirteen states across the country have signaled their readiness to ban abortion by passing so-called trigger laws, which would ban most abortions almost immediately after the decision from the Supreme Court.
“Some states that are very strongly anti-abortion, having been frustrated that they couldn’t ban abortion because of Roe v. Wade, decided to pass laws that would be on the books and operative immediately in the future event that the court ever removed the protections of Roe,” said Donna Crane, an adjunct professor at San Jose State University with an expertise in women’s rights and reproductive rights.
The 13 states that have trigger laws all have Republican-controlled legislatures: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming.
A current Texas law bans abortion after six weeks of pregnancy, and other states like Georgia, Ohio and South Carolina have passed legislation with the intent of prohibiting abortion after six weeks. These bills use the six-week mark as the point when an ultrasound may be able to detect the pulsing of what will become the fetus’s heart.
However, at six weeks many women have no idea they are pregnant.
Doctors measure the beginning of a pregnancy as being the first day of a woman’s last period. Why? They are tracking the length of pregnancy using a nearly 200-year-old calculation called Naegele’s Rule, named after Franz Karl Naegele, the German obstetrician who is credited with creating it in the 1800s.
The rule is somewhat confusing because conception usually does not occur until around 14 days after the first day of a woman’s period, assuming she has a 28-day cycle (which many women do not for a variety of reasons). The reason doctors still use the last menstrual cycle as a benchmark is because it is difficult to know exactly when the sperm fertilized the egg.
So when doctors say a woman is six weeks pregnant, it typically means the embryo started developing about four weeks earlier.
The heart, which can be seen flickering on an ultrasound, is still maturing and cannot be heard until several weeks later.
Perhaps this is the simplest way to say it: Six weeks pregnant is two weeks after a woman misses her period.
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Yes, birth control remains legal everywhere in the United States, though several states allow doctors and pharmacists to refuse to prescribe or dispense contraceptives, according to the Guttmacher Institute. The Supreme Court decision overturning Roe v. Wade does not indicate that the court would revisit past decisions about birth control.
However, some legal experts have raised concerns that justices could apply the argument for overturning Roe to limiting access to contraceptives. As a result, those who support birth control access worry that legislators could use a ban on abortion to make birth control less available.
“We’ve seen folks falsely equating emergency contraceptives and IUDs with abortion,” said Mara Gandal-Powers, director of birth control access and senior counsel at the National Women’s Law Center. “That’s certainly something I’m concerned about.”
One concern that has been raised is whether laws, like one in Oklahoma, that ban abortion from the moment of fertilization would also outlaw intrauterine devices, or IUDs, which are designed to prevent fertilization but also can stop a fertilized egg from implanting in the uterus. (The Oklahoma law specifies that it does not apply to contraception, including Plan B or morning-after pills.)
The two forms of emergency contraception pills, Plan B and Ella, work in a different way to prevent fertilization from occurring. Both delay or prevent ovulation and allow sperm in the reproductive tract to die out.
There are currently no abortion bans that attempt to prosecute women who cross state lines to seek an abortion.
However, states could try in the future, said David Cohen, a law professor at Drexel University. “There is no guarantee that an aggressive prosecutor might try to stretch the law as much as they can.”
In his concurring decision, Justice Brett Kavanaugh suggested that women who travel to neighboring states to receive an abortion would be protected by the constitutional right to interstate travel.
People who assist a women seeking an abortion in a neighboring state could also be at risk of prosecution.
“It’s hard to tell at this point, but I think it’s likely that [the prosecutors] will go after the people that help the woman get the abortion,” he said. “The person who drives them, the doctor who sees them.”
Both Texas and Oklahoma recently passed abortion bans that allow private citizens to sue people who perform abortions or who otherwise help someone get one.
Many organizations are still encouraging patients who cannot seek an abortion in their home state to travel across state lines to receive care, including a handful of companies that have pledged to cover travel expenses for employees who need abortions.
“People should travel, people should get care wherever they can,” said Mr. Cohen. “But it’s not a simple answer.”
It is still legal in most states to receive abortion medication by mail, which has been allowed since December 2021, when the Food and Drug Administration lifted a restriction that required patients to obtain the pills from a certified provider.
There are 19 states that had already prohibited the use of telehealth to prescribe abortion medication by requiring prescribers to be present when the drugs are administered.
The Guttmacher Institute, a research organization that supports abortion rights, found that in 2020, medication abortion — a two-pill regimen of mifepristone and misoprostol — accounted for over half of all abortions.
The end of Roe v. Wade will make little immediate difference on access to these medications, though legal experts say that could change as more trigger laws are certified.
Some telemedicine companies are bracing for anti-abortion trigger laws to take effect, but vow to continue mailing medication in the interim.
Dr. Julie Amaon, medical director of Just The Pill, a company that delivers abortion medication to people in Wyoming, Montana, Colorado, and Minnesota, said they will continue to serve clients in all four states until Wyoming’s trigger law is certified. If that happens, their clients in Wyoming will need to travel to receive care.
“The way it will work is if your state of residence bans access to medication abortion, you can travel to another safe state to have a telehealth appointment,” Dr. Amaon said. “You would then get the medication by pick-up at our mobile clinic or if you are in a state without mobile clinics, you would wait 1-2 days to have the medication mailed to a pick-up location.”
Aid Access, a European service that has continued to send pills to women in the U.S. regardless of the laws in their state, is likely to be unaffected by the recent decision. Anti-abortion lawmakers are generally wary of punishing individuals seeking an abortion, said Mary Zeigler, a law professor at University of California Davis. They tend to focus on clinicians and prescribers who aid the patient seeking an abortion, but overseas providers operate in extralegal channels outside the reach of state lawmakers.
“There’s not going to be an easy enforcement mechanism there,” said Ms. Ziegler “But it’s worth emphasizing, whatever answers I’m giving for today, may not be true tomorrow, the bans are just the tip of the iceberg.”