A leaked first-draft majority opinion from the U.S. Supreme Court stating the Court will overturn Roe v. Wade has conjured images of a dark era in the United States when pregnant women who needed abortions were forced to turn to dangerous means.
Indeed, if Justice Samuel Alito's leaked opinion becomes the final say of the Court, once-guaranteed abortion rights mandated by the Roe v. Wade decision in 1973 — which ruled that the U.S. Constitution's 14th Amendment protected a pregnant woman's right to have an abortion — would no longer exist. The leaked opinion came about as a result of SCOTUS deliberating the constitutionality of a Mississippi state law that prohibits abortion after 15 weeks of pregnancy.
In the event Roe v. Wade is indeed overturned, as seems likely, it would be up to each individual state to decide whether to ban or allow abortions.
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Estimates vary as to how many states would immediately ban abortion, but most forecasts suggest about half of U.S. states would. The Center for Reproductive Rights predicts 25 states are likely to ban abortion if Roe v. Wade is overturned. Those states are: Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin and Wyoming. Included in this estimate are the 13 states that already have "trigger laws," which would make abortion immediately illegal if Roe v. Wade is overturned. While the details vary from state to state — details that generally regard exceptions like rape, incest, or preventing an injury or death of a pregnant person — abortion access in these states will become more difficult.
While abortion access in a post-Roe U.S. will be similar the pre-Roe (meaning pre-1973) U.S., one key difference is that there are safer options to conduct self-managed abortions today. Dr. Carole Joffe, a professor in Advancing New Standards in Reproductive Health (ANSIRH) at the University of California–San Francisco, told Salon she expects America post-Roe world to have "fewer injuries," but "more surveillance."
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"Because people will make use of much safer methods like the pills," Joffe said, referencing medication abortion. "However, I think given the strength of the anti-abortion movement, I think we will have a lot more legal surveillance," she added.
Medication abortion, also known as the abortion pill, involves two different drugs delivered through a pill: mifepristone and misoprostol. Mifepristone (also known as RU-486), which was approved for abortion in the United States by the FDA in September 2000 can be used safely and effectively to terminate a pregnancy up to 70 days after a person's last menstrual cycle. Misoprostol is taken after mifepristone. The abortion pill is just one example of what pre-Roe women didn't have access to fifty years ago.
Joffe said that one similarity post-Roe America will have to pre-Roe America is that "as always, in America, people with resources will do better than people without resources."
"The [morning after] pill is not an abortion, so no states' abortion laws apply to the morning after pill ... but we might see states try to start banning things like the morning after pill."
Here's how experts say women can still access abortion and emergency contraception in states with abortion bans.
How to get Plan B
Plan B, colloquially known as the morning-after pill, is a form of birth control. Not to be confused with the aforementioned abortion pill, Plan B, which is the hormone levonorgestrel, is an emergency contraceptive, and helps prevent pregnancy within 72 hours of having unprotected sex. It does not induce abortion, and doesn't guarantee that pregnancy won't occur. Since 2006, women and men over the age of 18 have been allowed to buy Plan B, over-the-counter at local pharmacies, in all 50 states.
While Plan B won't become immediately illegal in the states that ban abortions, the right to access said contraception could end up on shaky ground and be challenged in some states.
Anti-abortion activists have incorrectly argued that Plan B causes abortions — which is not true, because the drug does not terminate pregnancies, as pregnancy does not occur if implantation has not happened.
"The [morning after] pill is not an abortion, so no states' abortion laws apply to the morning after pill," David S. Cohen, a professor of law at Drexel Kline's School of Law, told Salon. "We might see someone try to make the argument, we have not seen that yet, but we might see states try to start banning things like the morning after pill but that could not be an immediate effect of overturning Roe."
Indeed, anti-abortion activists have incorrectly argued that Plan B causes abortions — which is not true, because they do not terminate pregnancies as pregnancy does not occur if implantation has not happened. Despite that, if any state did legally define Plan B as causing an abortion, stores that sell Plan B could be in violation of state laws. If that's the case, some people would be forced to leave their states in order to obtain the drug — but that's a worst case scenario, and won't be an immediate effect of the overturning of Roe v. Wade.
Even with abortion bans in states and potential over-the-counter barriers, anyone should be able to access over-the-counter levonorgestrel morning-after pills at hospitals, Planned Parenthood clinics, and doctor's offices in every state regardless of abortion bans. You can also order morning-pills online, including retailers like cvs.com, Walmart, and Amazon. If affordability is a barrier (expect to pay $40-$50 for a one-time use pack), afterpill.com has an option that costs $25 including shipping and handling. Websites kwikmed.com, ellanow.com, and prjktruby.com also provide online options for people who can't get the pill in a nearby store.
How to get the abortion pill
Medication abortions are very safe and effective. The process first requires taking a mifepristone pill, then a second pill containing misoprostol 24 to 48 hours later. Medication abortion works up to 70 days after the first day of a person's last period — usually when a person is 10 weeks pregnant. The two-pill regimen, sold under the brand name Mifeprex, has been approved by the FDA for use for more than 20 years and can be prescribed via telemedicine, as the drug can only be prescribed by a certified health provider. According to data from the Centers for Disease Control and Prevention, medication abortions account for an estimated 42 percent of all abortions in the United States.
Unfortunately, access to medicated abortions will be restricted in states that ban abortions if Roe v. Wade is overturned.
"State restrictions on abortion and those specific to mifepristone would remain in place in a post-Roe world, and access would remain in states that don't restrict abortion," Kate Connors, spokesperson for the American College of Obstetricians and Gynecologists, told Bloomberg Law.
However, mail orders and telehealth will likely see an uptick in demand. While 19 states have laws that require a clinician to be physically present when abortion-inducing drugs are administered — which makes telehealth appointments effectively illegal — there will likely be an underground market of selling abortion pills in such states, meaning many people are conducting self-managed medication abortions.
As it stands, it would be illegal for telemedicine abortion consultations to happen in states that ban abortions— even if the doctor were located in a state where abortion was legal.
"What people will do going forward — which is what is already happening — is that people will self-manage their abortions, and that is extralegal, [and] will not involve providers in the United States," Joffe told Salon.
As Cohen explained to Salon, many state statutes technically make providing an abortion illegal, rather than prosecute those getting them. However, in states that do ban abortions, medication abortions would be harder to access because it would be illegal for providers across state lines to provide telehealth.
"So if a doctor is practicing medicine, say in New York — currently New York law only allows them to practice their license, via telehealth, if the patient is also in New York," Cohen said, noting there is a movement trying to push blue states to allow practice of medicine based on where the physician is based, not where the patient is located.
However, as it stands, it would be illegal for telemedicine abortion consultations to happen in states that ban abortions— even if the doctor were located in a state where abortion was legal. Hence, Joffe's prediction that there will be more self-managed abortions, though that, too, could come with a risk. A woman in Texas was thrown in jail on a murder charge for allegedly having caused the "death of an individual by self-induced abortion," though the case was later dropped.
The website Aid Access offers women in the U.S. the option to obtain an abortion in the privacy of their own homes. If you live in Maryland, Minnesota, New Mexico, Illinois, or Virginia — or can travel to those states — Whole Woman's Health provides medication abortion care by mail.
How to plan to get a procedural abortions when they're no longer legal in your state
If Roe v. Wade is overturned, it will be illegal for clinics to provide procedural abortions in the states that ban abortions. That means pregnant people in these states will have to travel to states where abortions are legal to get one.
Abortion-banning states may end up trying to retaliate for the privacy protections afforded by states like California and Washington. Cohen pointed to a new Oklahoma law that states that anyone convicted of performing an abortion could face up to 10 years in prison and a $100,000 fine.
Of course, not everyone will have the means to do so. Travel can be expensive and time-consuming, and requires resources that many don't have, whether that means a plane ticket, a car, gas money or the flexibility to take time off work.
Hence, various states where abortions are legal are gearing up to protect the rights of people who seek abortions in their states. For example, California recently passed a law protecting the privacy of women wanting abortions. The state of Washington passed a law prohibiting legal action against those who seek abortion and those who aid them.
But abortion-banning states may end up trying to retaliate for the privacy protections afforded by states like California and Washington. Cohen said he fears that in states that ban abortions, people who provide them could face extreme penalties. Cohen pointed to a new Oklahoma law that states that anyone convicted of performing an abortion could face up to 10 years in prison and a $100,000 fine.
"That's pretty extreme," Cohen said. "But I think that if we're going to see laws like that, and if a state really wants to be consistent — and certainly this is not my view of how things should be — but if they want to be consistent, they could say that a fertilized egg is a human being, which some state laws have tried to do, and now you're talking murder.
"I wouldn't be surprised to see some prosecutors, if there were someone performing procedural abortions in that state, go after the person for murder," Cohen said.
In the event Roe v. Wade is overturned, people who want to travel out of state for procedural abortions but can't afford it can seek assistance from abortion funds. The National Network of Abortion Funds is a helpful resource for people who need assistance.
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