What To Expect Now That Roe’s Been Overturned

On Friday, the Supreme Court voted 6-3 to overturn Roe v. Wade, leaving control over abortion access up to individual states. At least 25 states are likely to ban abortion entirely or in part. About 80,000,000 women live in states where abortion is likely to be restricted, according to census data. The ruling will force people to have children against their will and thrust many more people into the criminal legal system.

“What that means is that abortion will be unavailable in half the country, and some parts of the country will be an abortion desert for many contiguous states,” said Dana Sussman, acting executive director of the National Advocates for Pregnant Women, a legal organization that defends the rights of pregnant people from criminalization. “That includes both medication abortion and in-clinic care.”

Thirteen states have trigger bans — laws that are triggered into effect by the overturning of Roe. Three of those states — Kentucky, Louisiana, and South Dakota — will immediately ban abortion. Three states — Idaho, Tennessee, and Texas — have abortion bans that will go into effect 30 days after Roe is overturned. The remaining seven states with trigger bans — Arkansas, Mississippi, Missouri, North Dakota, Oklahoma, Utah, and Wyoming — require state actors like the governor or the attorney general to take an additional step for the ban to go into effect. Those actions could be taken within hours or days, according to the Guttmacher Institute, a research organization that studies abortion and reproductive health laws. All 13 states will make it a felony to provide someone with an abortion.

There are several ways the other states likely to restrict abortion could enact bans. Some, like Arizona, Michigan, West Virginia, and Wisconsin, have pre-Roe laws that banned abortion before Roe was passed that were never repealed. In some cases, those bans could be immediately enforced, while in others, courts or lawmakers need to take additional actions to make the bans enforceable. Other states, like Georgia, Iowa, Ohio, and South Carolina, previously passed bans on abortions after six weeks that were blocked by a judge but could become enforceable without Roe. Abortion opponents would need to take additional steps, such as getting a court to lift an injunction, for those bans to go into effect. Florida and Arizona recently passed 15-week bans that will go into effect later on this year. Other states may seek to pass new abortion bans in the wake of the Supreme Court decision.

Now, abortion will become even less accessible across many contiguous states in the South and Midwest. In order to obtain an abortion, people in those states will have to either self-manage an abortion illegally at home by purchasing abortion pills online or travel hundreds of miles to obtain an abortion in a state where it is legal. Such travel often requires people to take time off work and arrange childcare and lodging. And mandatory waiting requirements between appointments can mean a person has to make two trips to get an abortion—which can include two long journeys to a clinic, two stays at a hotel, two childcare arrangements, and two absences from work. The time and expense are prohibitive for many people, and the abortion itself can cost hundreds or even thousands of dollars and is often not covered by insurance.

Dozens of states have criminal penalties on the books for abortion providers — and some for patients — that will kick in if Roe is overturned. Is your state among them? https://t.co/aJ0eGXQGIh pic.twitter.com/3vCpbsD9LD

— Alice Miranda Ollstein (@AliceOllstein) May 6, 2022

For detailed information on the laws in your state, check the New York Times, Guttmacher, the Center for Reproductive Rights, or The 19th. You can also contact the hotline for legal help from If/When/How, a national nonprofit network of legal professionals fighting for reproductive justice.

“Every single state and every community is going to be dealing with a different situation. There is going to be a lot of confusion,” said Erin Grant, deputy director of the Abortion Care Network. “What will be the same is that abortion will still fundamentally be legal in the United States. Folks at places like ineedana.org will be working very hard to make sure folks know where they can go. Clinics will still be providing help.”

The demand at clinics in abortion-legal states will increase, creating long wait times that will make it more difficult for both locals and travelers to receive timely care. This in turn can make it more expensive — and in some cases, functionally impossible — to get an abortion.

Most abortion bans criminalize providers by making it a felony to perform an abortion. But experts say people who obtain abortions can and will be criminalized for their pregnancy outcomes — they already have been even while Roe was still in place. According to an analysis by the National Advocates for Pregnant Women (NAPW), over 1,700 people were criminalized for their pregnancy outcomes between 1973 and 2020. Prosecutors across the country have charged people who have had stillbirths or miscarriages with child abuse, murder, manslaughter, drug use, improper disposal of fetal remains, and misuse of a corpse.

At least 38 states currently have some form of fetal homicide laws in place. Of those states, 29 say that a person can be charged with homicide for killing an unborn child at any stage of development. Multiple states have also introduced laws defining a fetus, from the moment of conception, as a “person” entitled to civil rights and protection under the law.

“The laws that have already been used to criminalize people for the loss of a pregnancy can and will be used to criminalize people for an abortion,” said Laurie Bertram Roberts, executive director of the Yellowhammer Fund, an abortion fund and reproductive justice organization that assists people in the Deep South. “We have laws that have already been misappropriated to be used to say your womb is the environment and anything you ingest is child abuse. You can weaponize that precedent.”

In 2020, a 19-year-old Brittney Poolaw went to the hospital after suffering a miscarriage at home in Oklahoma. She was 17 weeks pregnant at the time. She told hospital staff she had recently used marijuana and methamphetamine. Police later arrested her for manslaughter. She was convicted last year and sentenced to four years in prison. Earlier this year in Texas, 26-year-old Lizelle Herrera was arrested and charged with murder for allegedly having a self-induced abortion. She was held on a $500,000 bond, though the charges were later dropped. It is likely that healthcare providers reported Herrera to the police. In Alabama, hundreds of new or expecting mothers have been arrested under the state’s chemical endangerment law. One of those women, Casey Shehi, took half of one of her boyfriend’s Valium pills during her rough pregnancy, gave birth to a healthy though premature baby, and temporarily lost custody of her child anyway.

“We’re already politically motivated to criminalize people for pregnancy loss. Now [police and prosecutors] just have a wider pool of laws that they may be able to choose from to go after folks,” said Yveka Pierre, senior litigation counsel for If/When/How, a nonprofit legal advocacy organization focused on reproductive justice. Pierre works on cases where people have been criminalized for losing a pregnancy, including people who have been criminalized for an abortion, a stillbirth, a miscarriage, or for disposing of fetal remains.

“Police and prosecutors are misusing laws to criminalize people,” said Pierre. “We see things like misuse of a corpse if they gave birth at home.”

The criminalization of abortion will impact marginalized communities the most. People of color, LGBTQ people, undocumented people, poor people, and people who live in rural areas have already struggled to access abortions when Roe was still in place. People of color are already arrested and incarcerated at higher rates than white people. Maternal mortality rates, which are already abysmal in the United States, are worse for women of color. People denied abortion are more likely to become trapped in cycles of poverty, as the Turnaway study, a landmark, longitudinal study of people who sought abortions, has shown. And people will be forced to have children against their will in a country with no paid parental leave, right to healthcare, or guaranteed childcare.

People are likely to come into contact with the criminal legal system after seeking care for an abortion, miscarriage, or stillbirth, said Dr. Jamila Perritt, president and CEO of Physicians for Reproductive Health, a network of physicians advocating for access to reproductive health. Healthcare providers might not know what they are or aren’t legally required to report, so they may report patients to police for their pregnancy outcomes out of fear for their own legal liability.

On Thursday, NAPW released a detailed guide for healthcare providers, child welfare workers, and law enforcement, among others, on ways to combat the criminalization of pregnancy outcomes and learn what is and isn’t required under the law.

“Stop calling the police on your patients,” said Perrit. “Our ask to healthcare providers, to doctors especially, is to think about ways we can honor the oath we all took to do no harm. That begins with really giving some thought to the role we play.”

For those who could be forced into the criminal legal system for their pregnancy outcomes, digital safety habits will be important. Sussman from NAPW told The Appeal prosecutors in states hostile toward abortion may seek to obtain records on people’s search history or GPS data to confirm that someone intentionally sought an abortion (and that a pregnancy loss wasn’t a miscarriage).

“I would implore folks to use encrypted messaging apps, to be careful who they share information with, and to protect their digital security and digital footprint and be very intentional about that,” said Sussman. “Contact us or contact trusted resources to get information. Do not turn over your devices to law enforcement. Make them get a warrant.”

In the future, lawmakers in states that ban abortion will be looking for ways to crackdown on the two main workarounds to get an abortion—traveling to another state and obtaining abortion pills by mail. The National Right to Life Committee, one of the oldest and most influential anti-abortion groups in America, in June began circulating model legislation for a post-Roe America: The suggested laws include making it illegal to share information online about obtaining abortion pills, give abortion advice over the phone, or act as an abortion doula. The NRLC recommends states strip doctors of their medical licenses for performing abortions, allow civil suits to be brought against people who violate abortion laws, and use Racketeer Influenced and Corrupt Organizations Act (RICO)-style laws to prosecute anyone “aiding or abetting” an abortion.

Separately, Perritt said birth control, emergency contraception, IUDs, and in vitro fertilization could all be next on the chopping block.

“Everything is at stake,” Perritt said. “Abortion is the canary in the coal mine. This is just the beginning of all the ways we’re under assault … It begins with abortion but it absolutely does not end there.”

She added: “Their only interest is to eliminate individual autonomy and personal liberty. This is about power and control.”