“Giving birth in the U.S. is already far more dangerous than in other wealthy countries. Ending the protections of Roe v. Wade — the 1973 decision that established the constitutional right to abortion — could make it even more so.
Multiple studies have found that the states that already have the tightest restrictions on abortion also have the highest rates of maternal and infant mortality. And that correlation stubbornly persists even after researchers account for some of the other differences between states, like racial demographics and health care policy. Some researchers think that abortion restrictions are part of the reason why pregnancy and childbirth are so much more dangerous in the U.S. — even for people who never wanted an abortion to begin with.
This data could just be a statistical red herring. But there are ways abortion restrictions could kill people, both directly and indirectly. And scientists say these correlations point toward dangerous disparities in health care access in the U.S. — not just in terms of who can get an abortion, but also in terms of who can get preventative care while pregnant, or even before.”
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“Carrying an unplanned pregnancy involves shouldering increased risks of depression, preterm birth, lower birth weight and other complications.”
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“Recently released government data shows that 861 women died from causes related to pregnancy and birth in 2020, up from 754 the year before. In population-level terms, the maternal mortality rate in 2020 was 23.8 deaths per 100,000 live births in the U.S., compared with 3.2 deaths per 100,000 live births in Germany in 2019 and 7.9 deaths per 100,000 live births in France in 2015. (The maternal mortality rate calculated by the CDC includes deaths from abortion-related complications, but the organization also calculates that subset separately. In 2019, the death rate from abortion in the United States was minuscule: 0.41 deaths per 100,000 legal abortions between 2013 and 2018.) Infants are also at higher risk of dying in the U.S. than in other wealthy countries. In 2020, the infant mortality rate in the U.S. was 5.4 deaths per 1,000 live births, compared with 1.9 infant deaths per 1,000 live births in Finland and 2.7 infant deaths per 1,000 live births in Spain.
Black Americans are nearly three times more likely than their white counterparts to die as a result of maternal complications, and the risk to Black babies is much higher as well. These disparities are so large that the states with the highest maternal mortality rates are also often states with large Black populations, and researchers have concluded that social factors like inequality and structural racism are playing a huge role in why pregnancy complications kill Americans.
But some researchers think that attempts to restrict abortion access are playing a part too.”
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“The simplest explanation is just that giving birth is statistically more dangerous than having an abortion. If the states with the highest mortality rates are the also the ones banning abortion that means more births — and also more deaths.”
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“efforts to reduce abortion access have often resulted in the closure of clinics like Planned Parenthood that offer a range of non-abortion-related services. Losing access to preventative health care puts people at a higher risk for all kinds of illnesses that can later cause pregnancy complications. And this effect means the impacts of abortion restriction can overlap and build on the social inequalities that are already harming Black people and babies.”
“Ireland’s laws against abortion were some of the most restrictive in the world.2 From 1983 to 2018, “the right to life of the unborn” was equal to the “right to life of the mother,” and the state was empowered to “defend and vindicate that right.” This was enshrined in the Irish Constitution’s Eighth Amendment, which two-thirds of voters approved in a 1983 referendum. Furthermore, under Irish law, performing or obtaining an abortion was punishable by up to 14 years in prison.
Of course, this didn’t stop abortions in Ireland. Abortions happened anyway, both abroad and underground. But the fact that they still happened — and that they were still in demand — didn’t make the effort to legalize them any easier. It took another 35 years for abortion to become legal in Ireland — and a steady stream of activism and high-profile stories of suffering for abortion rights to expand.”
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“It took almost a decade for the broader Irish public to become aware of the dire consequences faced by those who are denied abortions. In 1991, a 14-year-old girl was raped by the father of one of her friends. The attorney general filed an injunction prohibiting her and her parents from traveling to England to seek an abortion because the law compelled the state to protect the life of the fetus. During that time, the girl was expressing suicidal thoughts, and a clinical psychologist testified in a court hearing that the girl was at risk of killing herself; ultimately, the Irish Supreme Court decided to set aside the initial court ruling, thus allowing the girl to get an abortion because there was a real threat of suicide.”
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“If Ireland is any example, a lot more women in America will have to die or experience mental-health issues before attitudes toward abortion care dramatically shift.”
“Noting that “the Constitution makes no reference to abortion,” Alito argues that “no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” Although “that provision has been held to guarantee some rights that are not mentioned in the Constitution,” he says, “any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.'” Alito concludes that “the right to an abortion does not fall within this category.”
That analysis falls short in at least two crucial ways.
First, Alito fails to grapple with the argument that the right to terminate a pregnancy can be understood as a subset of the right to bodily integrity. As the legal scholar Sheldon Gelman detailed in a 1994 Minnesota Law Review article, the right to bodily integrity can be traced back to the Magna Carta. That makes it one of the many rights “retained by the people” (in the words of the Ninth Amendment) that were imported into the Constitution from English law. That right, in other words, is “deeply rooted” in American history and tradition.
Second, Alito’s draft opinion distorts the relevant legal history and thus misstates the historical pedigree of abortion rights. “When the United States was founded and for many subsequent decades, Americans relied on the English common law,” explains an amicus brief that the American Historical Association and the Organization of American Historians filed in Dobbs. “The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called ‘quickening,’ which could occur as late as the 25th week of pregnancy.”
A survey of founding-era legal authorities confirms this view. William Blackstone’s widely read Commentaries on the Laws of England, first published in 1765, noted that life “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” Under the common law, Blackstone explained, legal penalties for abortion applied only “if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb.” That means abortion was legal in the early stages of pregnancy under the common law.
Blackstone’s writings had an important influence on America’s founding generation. In his 1790 Of the Natural Rights of Individuals, for example, James Wilson, a driving force at the Constitutional Convention in Philadelphia and a leading voice for ratification at Pennsylvania’s convention, repeated Blackstone’s gloss. “In the contemplation of law,” Wilson wrote, “life begins when the infant is first able to stir in the womb.”
At the time of the founding, no American state had the lawful power to prohibit abortion before quickening because the states adhered to the common law as described by Blackstone and Wilson. We might call this the original understanding of the states’ regulatory powers. That original understanding contradicts Alito’s assertion that abortion rights—at least during the early stages of pregnancy—lack deep roots in American history.”
“With the passage of state laws intended to restrict access to abortion, some companies like Bumble, Yelp, and Salesforce have announced programs to assist employees who have to travel to other states in order to obtain the procedure. After the apparent leak of a draft Supreme Court opinion which would overturn the right nationwide, Amazon announced that for any employees who have to travel in order to receive an abortion, it would reimburse up to $4,000 annually.
Last week, Sen. Marco Rubio (R–Fla.) responded by threatening legislation.
Employees’ health care costs are typically tax deductible as business expenses for their employers. Rubio’s bill, the No Tax Breaks for Radical Corporate Activism Act, would bar a company from deducting the costs of reimbursements not only for abortions but also for gender-affirming medical treatments for transgender children. In a statement accompanying the legislation, Rubio said, “Our tax code should be pro-family and promote a culture of life.”
But directly disincentivizing behavior is a fundamental misuse of the tax code, and it’s unlikely to work anyway.
To be sure, government policies are inherently incentivizing: For example, laws against robbery and murder are intended to keep people from robbing and murdering. Regarding taxes, people with incomes near the top of their tax brackets are disincentivized to increase their income, to avoid paying a higher rate.
But writing specific incentives into the tax code is an inherent market distortion, where politicians choose what products and activities they think people should be buying and partaking in. This can take the form of cronyism when certain types of products are favored. Even something as seemingly benign and beneficial as a tax credit for purchasing electric vehicles can just become a giveaway to favored companies. Additionally, when a benefit exists, it makes it that much easier for a politician to threaten to take it away: Even the health cost deduction Rubio is targeting is, itself, a distortion that incentivizes employer-provided health insurance plans.
Politicians use the tax code to achieve social policy goals because it is typically easier to insert a targeted tax credit than to pass a bill creating a new welfare program. But in practice, these carve-outs make everything more complicated: When the various COVID-19 relief bills apportioned money for stimulus checks, even with funding for additional staffing, the Internal Revenue Service (IRS) was slammed with calls from people awaiting their payments. When the tax code is the means by which benefits are distributed, then the tax collectors must also function as a social services agency.
Worse, it’s not even apparent that these benefits have their desired effect. A 2014 study of a tax on high calorie foods showed that such a tax can lead to more purchases of high calorie foods. In 1997, Iris Lav of the Center on Budget and Policy Priorities, a progressive think tank, told The New York Times, “There’s very scant evidence that the tax code has ever changed people’s behavior.”
Ironically for Rubio, this used to be Republican orthodoxy. In 1964, Ronald Reagan declared, “We cannot have [true tax] reform while our tax policy is engineered by people who view the tax as a means of achieving changes in our social structure.” But since then, Republicans as well as Democrats have used the tax system as a shortcut to achieving their desired policy outcomes. As a result,filing one’s annual taxes is an expensive, grueling process.
To the extent that taxation has any legitimate purpose, it is to fund the basic function of the federal government. Anything further, like incentivizing family or “a culture of life,” is simply government coercion by another name.”
“Roe held that the state could “could regulate (but not outlaw) abortions in the interests of the mother’s health” in the second trimester of pregnancy and ban abortions only in the third trimester of pregnancy as a fetus developed more “potentiality of human life.” Its successor case, Planned Parenthood v. Casey, affirmed a right to an abortion until a fetus became viable outside the womb.
Unlike slavery and civil rights, abortion is not an issue that lends itself to absolute moral clarity. There are obviously two sets of rights involved, but exactly when legal personhood for the fetus begins has always been contested, as seen in historic laws that banned abortion only after “quickening.”
The cultural genius of Roe is that it created broad parameters that reflect how we think about pregnancy and abortion: At some point during gestation, the fetus becomes a person with a right to life and liberty, but drawing that line will always be a compromise and imprecise. Honest brokers on both sides of the abortion debate will acknowledge that the opposing side has a case.
Survey data show that Roe was remarkably effective at balancing the rights of the fetus and the mother in a way that fits with our societal values. Sixty percent of Americans support abortion in the first three months of pregnancy and only 13 percent in the final three months. Even more telling is data showing that 93 percent of abortions are performed before the 13th week of pregnancy, and just 1 percent are done after 21 weeks.”
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“individual freedom trumps federalism. Though abortion will never be a clear-cut issue, once we have broad societal agreement on how to delineate between the interests of the mother and the interests of the fetus, women across the country deserve basic protections for their bodily autonomy and privacy.
Keeping abortion legal for at least part of pregnancy doesn’t mean that pro-lifers won’t be able to reduce its incidence. The abortion rate has declined for decades despite the procedure’s availability. So has the unwanted pregnancy rate. These are outcomes worth celebrating, as they reflect women being in more control of their own bodies.
Overthrowing Roe and Casey would threaten that progress and broad consensus by stoking a new culture war in which states rush to ideological extremes that run roughshod over the rights of women or fetuses, depending on the state, some of which are already trying to restrict access to their residents’ ability to receive or even fund abortions performed elsewhere.
Post-Roe America would be one with fewer rights and, likely, more political division. There’s no perfect policy on abortion, but in 1973, the court struck a compromise that most Americans continue to endorse. That victory, I fear, is about to be undone.”
“If the U.S. Supreme Court reverses Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), a number of American states will immediately criminalize abortion. Some of those states may also attempt to ban women from traveling out of state for the purpose of obtaining a lawful abortion elsewhere. But any such anti-abortion interstate travel ban would be constitutionally defective for multiple reasons.
First, the Constitution protects the right to travel, which necessarily includes the right to interstate travel. This is a fundamental constitutional right that has been repeatedly recognized by the courts. During the debates over the ratification of the 14th Amendment, the right to travel was invoked as one of the privileges or immunities of citizenship that the amendment was designed to protect from state infringement. For a state to prohibit (or even penalize) the act of leaving that state and doing something perfectly lawful in another state would violate this constitutional safeguard.
Second, an anti-abortion interstate travel ban would run afoul of the Dormant Commerce Clause, a legal doctrine which holds that the Commerce Clause, in addition to authorizing congressional regulation of economic activity that occurs between the states, also forbids the states from enacting their own interstate economic barriers.”
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“Finally, there is relevant case law which cuts against the lawfulness of any anti-abortion interstate travel ban. In Planned Parenthood of Kansas v. Nixon (2007), the Missouri Supreme Court reviewed a state law which created a civil cause of action against any person who helped a minor obtain an abortion without parental consent either inside the state or in another state. “Of course, it is beyond Missouri’s authority to regulate conduct that occurs wholly outside of Missouri,” the Missouri Supreme Court observed, and the law at issue “cannot constitutionally be read to apply to such wholly out-of-state conduct. Missouri simply does not have the authority to make lawful out-of-state conduct actionable here, for its laws do not have extraterritorial effect.””
“it will be worse still if what happens in Texas doesn’t stay in Texas. Extra-territoriality still lies over the horizon; Connor Semelsberger, an official with the anti-abortion Family Research Council, told me his organization was far more focused on reviving pre-Roe state laws restricting abortion and on preventing the sale of abortion pills than on pursuing action across the border. Yet efforts to limit the sale of abortifacients will almost inevitably involve enforcement beyond state lines, as is the case with the Texas extradition statute. Katie Glenn, government affairs counsel of Americans United for Life, testified in Texas in favor of the new law and says she expects to see “interstate scuffles” as pro-abortion rights states resist the cross-border reach of anti-abortion legislation. Those scuffles could involve either extradition demands or attempts to hold out-of-state figures, whether doctors or Uber drivers, civilly liable for facilitating an abortion. The new Connecticut statute specifically bars local officials from cooperating with extradition requests over the facilitation of abortion. Just so, in 1850, did Vermont pass legislation requiring citizens to help, rather than apprehend, fugitives running from slavery.
The Supreme Court, which seems to think it will have finally washed its hands of the issue, will have no choice but to adjudicate the dispute. The court has been here before as well. In 1846, Dred Scott, an enslaved man from Missouri, sued for his freedom on the grounds that his enslaver had taken him into Northern territories where he had lived for many years. The case finally reached the Supreme Court in 1857. The court ruled that Scott remained mere property, as the Fugitive Slave Act stipulated. Chief Justice Roger Taney then added, in perhaps the single worst decision in the history of the Supreme Court, that because enslaved people had no “rights which the white man was bound to respect,” the federal government could neither confer citizenship on Black people nor bar slavery in federal territories. The Dred Scott decision convinced Northerners that the “slave power” had gained control over all three branches of government. Slavery could not be extirpated save by war.
The questions that will face the court are, of course, very different this time: Whether the state laws in question violate a principle implicit in the Constitution like the “right to travel,” or which of two conflicting state laws take precedence over the other. Mary Ziegler, a law professor at Florida State University and the author of several books on abortion and the law, says there simply are “no settled answers to these questions.” After all, states have not tried to impose their laws on one another for the past 170 years or so. “There’s not a lot to constrain the justices,” says Ziegler, “which adds to the unpredictability.” One can only hope that the court will act in such a way as to dampen conflict rather than advance the anti-abortion cause, though there’s little reason to have much confidence.”
“Republican lawmakers in Oklahoma passed a bill on Thursday that would ban abortions after a fetal heartbeat can be detected, typically around six weeks into pregnancy and before many even know they are pregnant.
The Oklahoma Heartbeat Act will take immediate effect as soon as Gov. Kevin Stitt signs the bill, which is expected as early as Friday. Stitt has committed to signing any anti-abortion legislation that comes across his desk and has previously described himself as America’s “most pro-life governor.”
Earlier this month, Oklahoma enacted a different bill that nearly totally bans abortion except in cases where the pregnant person’s life is endangered. Under that bill, anyone who performs an abortion would face up to 10 years in prison and up to $100,000 in fines. It will take effect in August unless barred by the courts.
The new bill, which was passed without debate or any questions allowed, is modeled after a Texas law that went into effect last year. It has exceptions for cases where the pregnant person’s life is endangered, but not for cases of rape, incest, or fetal conditions that make life unsustainable after birth. It also imposes additional reporting requirements on physicians and allows private individuals to seek civil penalties, including at least $10,000 in damages, against anyone who aids in or performs an abortion after the six-week term. That’s designed to circumvent current legal limitations on the government’s ability to go after abortion providers.
“It’s identical to the bill that was enacted by the Texas Legislature last year, and that bill has passed muster with the United States Supreme Court,” Tony Lauinger, the chairman of Oklahomans for Life, told the AP. (The Supreme Court, however, never held a full hearing on the bill and merely dismissed a case challenging the bill in a brief order without explaining its reasoning.)”
“important research published in 2020 that compared the fates of women who were forced to carry pregnancies to term versus those who were provided abortions. The influential Turnaway Study, as it’s commonly referred to, found that, among other things, women who were denied an abortion endured more serious pregnancy complications, more chronic pain, and more short-term anxiety.”
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“more unwanted pregnancies would be carried to term if the court were to negate a federal right to abortion.”
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“The Turnaway Study began in 2007 and followed more than 1,000 women for five years to assess how their lives had been altered, if at all, by the provision or the denial of an abortion. Some of the women had an abortion shortly before reaching the gestational limit set by their state or provider, while others had just passed that limit and were denied an abortion as a result. The differences in the women’s experiences from that critical moment onward were the purview of the study.
“We find no evidence abortion hurts women,” Foster writes in the 2020 book The Turnaway Study that covered the research’s findings. “For every outcome we analyzed, women who received an abortion were either the same or, more frequently, better off than women who were denied an abortion.”
The mental health of women who received an abortion was better immediately after the procedure than that of women who were denied one. Their physical health fared better over the longer term. Their subsequent children developed better.
Foster presents a nuanced picture, noting, for example, that after the five-year period of the study, almost none of the women who ended up carrying an unwanted pregnancy to term said that they still wished they’d had an abortion. But Foster is nevertheless unequivocal in her conclusions about what being denied an abortion meant for the women involved: “We find many ways in which women were hurt by carrying an unwanted pregnancy to term.””
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“The most unexpected and tragic outcome noted in the Turnaway Study was that two of the women died because of childbirth complications. It came as a shock to Foster, who wrote that she “did not expect to find even one maternal death in a study of 1,000 women.” The US maternal mortality rate is 1.7 per 10,000, meaning the odds of two women in 1,000 dying were exceedingly low.
Foster was careful not to be definitive about this finding, writing that a much larger sample size would be necessary to draw any firm conclusions about the relationship between being denied an abortion and maternal mortality. The implications remain grim, however: “This level of maternal mortality is shocking,” she wrote.
Short of death, women who are denied an abortion are more likely to have serious complications than women who received an abortion. The Turnaway Study found that 6.3 percent of the women who had given birth suffered life-threatening complications versus about 1 percent of women who had complications from an abortion.
Women who were denied an abortion also saw a higher risk of gestational hypertension, which increases their risk for cardiovascular disease later in life. The study found that 9.4 percent of women who gave birth experienced hypertension during the pregnancy versus 4.2 percent of women who had second-trimester abortions and 1.9 percent of those who had first-trimester abortions.
The women who gave birth also experienced slightly higher rates of chronic head pain and joint pain afterward. On self-reported health, a metric shown to be a strong indicator of future health and mortality, 27 percent of women who carried their pregnancies to term after being denied an abortion said they were in fair or poor health versus 21 percent of women who had second-trimester abortions and 20 percent of women who had an abortion in the first trimester.
“To the extent that there were differences in health outcomes,” Foster wrote, “they were all to the detriment of women who gave birth.””
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““We found no mental health harm from having an abortion.””
“Over the past four years, Aid Access says it has delivered abortion medication — mifepristone and misoprostol — to more than 30,000 Americans across all 50 states, including the 19 conservative states that currently ban telemedicine abortion.
The organization plays a unique role in the US reproductive rights ecosystem by successfully exploiting legal loopholes that make it easier for an overseas doctor to care for American patients in restrictive states — a role that could become even more key if Roe v. Wade is struck down.”
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“because it operates outside the formal US health care system, Aid Access says it has been penalized by search engines and social media giants that have tried to tackle the spread of Covid-19 misinformation.
Aid Access still pops up on Google if you search the organization’s name, but most users had come to the site while searching for terms like “abortion by mail” and “abortion pills.” Following a series of algorithm updates beginning in May 2020, Aid Access says it no longer shows up in top results for general medication abortion searches — and that ads from its sister organization, Women on Web, which serves countries all over the world, are frequently removed or rejected from Facebook and Instagram for dubious reasons, like “language … that is likely to offend users.”
Republicans might not be able to stop Aid Access right now, but it appears that Silicon Valley can.”
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“Activists note that medication abortion is far safer than many painkillers easily purchased over the counter, and the World Health Organization maintains that individuals can self-administer the drugs without direct supervision of a health care provider during their first trimester. New Lancet research published in February affirmed the safety of the Aid Access model, which also provides the medication at significantly lower cost than in-person surgical abortions or even the new crop of US startups like Hey Jane, Abortion on Demand, and Carafem.”