More than a year after the US supreme court overturned Roe v Wade, the dust from the landmark decision’s collapse has yet to settle.
It has been a dramatic year of fallout, with abortion rights supporters and foes now waging a state-by-state skirmish for abortion rights. They are sparring in state legislatures, courtrooms, voting booths and hospitals, with each side racking up victories and losses.
With a presidential election and another major supreme court case on the horizon, the coming year promises to be at least as eventful. Here’s what you need to know about the fight over abortion in 2023 – and what it means for 2024.
Abortion rights supporters keep winning at the ballot box
In 2022, Republicans underperformed in the midterms and abortion rights activists won a string of ballot measures to preserve abortion rights, even in conservative states. This year, activists extended their winning streak – and they hope to replicate their successes in 2024.
In November, Ohio became the first reliably red state since Roe fell to vote in favor of proactively enshrining abortion rights in the state constitution, while Virginia Democrats successfully fended off Republicans’ attempt to retake the state legislature by campaigning on a 15-week abortion ban.
For activists and Democrats, these victories were proof that abortion is an election-winning issue – and, potentially, an issue that can draw in voters from across both sides of the ideological spectrum. Activists are already at work on 2024 abortion-related ballot measures in roughly a dozen states, including swing states like Arizona and Nevada.
Abortions are on the rise
After abortion clinics across the south and midwest were forced to shutter, patients overwhelmed the country’s remaining clinics. In the first year after Roe’s demise, the average number of US abortions performed each month rose rather than fell. Clinics and their advocates are now struggling to keep up. “What actually is happening is a complete disruption,” one expert told the Guardian.
There is also a gaping hole in the data, which was released in October by the Society of Family Planning: it does not include abortions performed at home, a practice known as “self-managed abortion”. Medical experts widely agree that it is safe to self-manage an abortion using pills early on in pregnancy, and a number of services shipping abortion pills have increased in visibility since Roe’s overturning. But while evidence suggests that self-managed abortion is on the rise, the lack of concrete data about the practice reflects a growing problem in the post-Roe United States: as abortion moves further into the shadows of US life, we will know less about it.
Legal battles over abortion bans are ongoing
Abortion bans continued to cascade across the country in 2023, with near-total bans taking effect in Indiana, North Dakota and South Carolina. South Carolina and Nebraska, meanwhile, enacted laws to ban abortion after 12 weeks of pregnancy. In total, 24 states or territories have now banned abortion before viability, or roughly 24 weeks of pregnancy, which would have been illegal under Roe.
Litigation over abortion restrictions is still unfurling in many of these states, and court cases have frozen bans in states like Wyoming and Iowa. Wisconsin abortion providers, meanwhile, found themselves in a unique position this year: after a judge ruled that an 1849 law that had been interpreted to ban abortions instead only banned feticide and did not apply to what she called “consensual abortions”, providers resumed performing the procedure – even though the ban is still technically on the books.
Lawsuits may force other hardcore anti-abortion states to soften their bans in 2024 to clarify exceptions when abortions are permitted in medical emergencies. While Tennessee and Texas carved out narrow exceptions in their abortion laws, abortion rights supporters have still filed lawsuits in those two states, as well as in Idaho, that challenge the language. One Texan mother of two filed a lawsuit seeking an emergency abortion while she was still pregnant. (She ultimately fled the state for the procedure.)
Theoretically, people in medical emergencies should be able to access the procedure even in states with bans – but doctors say that, in reality, these bans are so vaguely worded that they block doctors from helping sick patients. This summer, one of these lawsuits led women to testify in a Texas court about their experiences of being denied abortions. It was the first time since Roe fell, if not the first time since Roe itself was decided, that women did so.
Abortion pills are in peril
The most common method of abortion, abortion pills, is at the mercy of deeply conservative courts in 2024.
In April, a conservative judge in Texas ruled to suspend the FDA’s approval of a key abortion pill, mifepristone, in response to a lawsuit brought by a coalition of rightwing groups determined to make the pill the next target in their post-Roe campaign against abortion. A federal appeals court soon scaled back that decision, ruling to keep the pill, mifepristone, available but impose significant restrictions on its use. The supreme court then stepped in and decreed that the FDA’s rules around mifepristone should stay the same while litigation plays out.
The Biden administration and a manufacturer of mifepristone in September have asked the supreme court to formally hear arguments in the case. In December, the justices agreed.
Although the justices indicated that they will only rule on the restrictions imposed by the appeals court, rather than on the overall legality of mifepristone, the case could still have enormous consequences. Rolling back the FDA’s rules could allow future lawsuits against other politicized medications, like gender-affirming care, HIV drugs or vaccines. Plus, the supreme court will probably rule by summer 2024 – just months before the presidential election.
Mifepristone is used in more than half the abortions in the country. If access to the drug is curtailed, many abortion clinics have said they will pivot to using doses of a different drug, misoprostol, to perform abortions, but misoprostol-only abortions are less effective and associated with more complications.
Doctors are fleeing states with abortion bans
With abortion bans endangering their patients and threatening to send doctors to prison, doctors are fleeing states where the procedure is banned. After Idaho banned abortion, at least 13 reproductive health physicians left the state and at least two rural labor and delivery wards have closed. Doctors in Tennessee, Texas, North Carolina, Ohio and Florida have also told reporters that they are leaving states with abortion bans or planning to do so.
OB-GYNs are already in short supply in the United States. About half of US counties do not have a practicing OB-GYN, according to the American College of Obstetricians and Gynecologists. The US maternal mortality rates are also worsening, particularly for Black and Native people, at a time when the United States already has the worst maternal mortality rate among industrialized countries.
Doctors are now even afraid to get trained in states with abortion bans. Applications to OB-GYN residencies in states with near-total bans fell by more than 10% the year after Roe’s demise, according to data from Association of American Medical Colleges. Applications to US OB-GYN residencies overall dropped by about 5% – indicating that fewer doctors are planning to become OB-GYNs at all.
