Written by Annika Lilja
Roe v. Wade is the 1973 decision in the Supreme Court that made abortion legal nationwide in the US. In a 7-2 decision, the court ruled that a woman’s right to an abortion was implicit in the right to privacy that is protected by the 14th Amendment.
The Supreme Court agreed to hear a case that will allow the conservative majority the opportunity to roll back the constitutional right to abortion that was established in Roe v. Wade. This case concerns a Mississippi law that seeks to ban almost all abortions after 15 weeks of pregnancy. This 15-week timeline is about two months earlier than the Roe decision allows. This case will be crucial in establishing how the court's six-justice conservative majority will approach moving to place new constraints on abortion rights. For everyone in this country, whether anti-abortion or pro-abortion, this ruling will be a massive decision that will affect citizens all across the country. For supporters of abortion rights, the court's decision to take this case signals a willingness to revisit Roe and possibly overturn it.
Before Roe v. Wade, women would often resort to illegal and dangerous "back-alley" abortions. Abortions were extremely unsafe before Roe. We have this image of the coat hanger. After Roe, the vast majority of abortions required a surgical procedure by a doctor in a clinic or hospital. This meant that abortions became safer and much easier to access. In 2000 with medical advancement, the FDA approved medication abortion. Medication abortions have grown in prevalence and now make up more than 40% of all abortions in the US.
Medication Abortion involves 2 pills that a woman can take when they are up to 10 weeks pregnant. About 80% of abortions occur in this timeline, making this an option for the majority of women seeking an abortion.
The biggest drawback is that the first drug is strictly regulated by the FDA.
Misoprostol, the drug, blocks hormones essential to pregnancy. This drug is so strictly regulated that women must go in-person to a specially certified doctor to pick up the pill. They can take the pill anywhere, but they must go see that doctor to get it. For women who don't have the resources or time, this is a large barrier to abortion. The specially certified doctor could be further away and if these women don't have the time or the money, getting an abortion could be even more difficult. Medical experts like the American Medical Association and the American College of Obstetrics and Gynecology have years of data that show that medication abortion is very effective and safe. The organizations are pushing for this to be treated like any other drug.
The COVID-19 pandemic changed this requirement. These major organizations saw an opportunity to get the FDA to lift this restriction and they jumped on it. They made the argument for the unnecessary risk of getting covid when it wasn’t necessary for safety reasons for women to get the pill in person. This went back in forth in court. The Trump administration fought it and when the Biden administration came in, the FDA temporarily lifted the requirement for the duration of the pandemic. We are awaiting a decision from the FDA on whether this lifted restriction will be permanent, or if other restrictions on this drug will be lifted.
Now, with this barrier lifted, women can have a telemedicine appointment with a specially certified doctor who can then mail the pills to her at home or wherever. The abortion pill can be taken in privacy, wherever. Not going in person allows women to be private and avoid abortion protestors.
“I think the public debate has not really reflected these changes that have been happening over the last few years with medication abortion. And if this barrier is lifted permanently, that will be a really significant step. But, as with everything involving the abortion issue, it's a lot more complicated than that” (Belluck).
Laws on telemedicine and abortion differ from state to state. In 19 states you can't have a telemedicine appointment and then get abortion pills by mail. In 20 states you can have a telemedicine appointment with a doctor certified in your state, and then get the pills via mail.
So in 19 states, the upcoming ruling wouldn’t change much, it would still be illegal to get pills via mail in the states where it's illegal to have a telemedicine appointment and then receive the pills. You could, however, travel to another state, where this is legal. This would be cheaper and easier than going to another state to have a surgical abortion. You can just sit in a house, car, or hotel if you go to another state where it's legal, and have a telemedicine appointment, and get it mailed to a family member, a friend, or even to a PO Box. This does is harder to enforce as it is a law about what you can't mail. It's simply harder to police. But the fact remains that even for women in a state where it's illegal to have a telemedicine appointment and get the drug, it would be easier to get the drug and have an abortion.
Questions still occur about the details of this system. How can the FDA ensure the pill is used correctly? How can the FDA make sure women follow the timeline?
If the FDA permanently lifts this restriction of going in person to see a doctor, conservative states will likely unleash any way to further restrict medication abortion. 6 states have already banned the mailing of abortion pills during the pandemic. 4 states have adopted laws that try to restrict how late you can get a medication abortion. Texas, for example, tried to get it down to 7 weeks. In states that favor abortion rights, they will try to further these efforts.
Organizations exist to make it easier to get abortions. There is one organization, Aid Access, which is based in Europe, that will allow women to go online, fill out a form, and get a doctor to prescribe pills. If you live in a state where it's illegal, they can even send you the pills from India. The FDA tries to restrict this, but it's hard to do. They have only intercepted a few of these packages. Even women who aren’t currently pregnant can have these pills sent from Aid Access to keep on hand in case of pregnancy.
The fact is, medication abortion has changed the abortion fight.
This year, the supreme court rules on this case in Mississippi that will decide the fate of the future of Roe. Medication abortion will likely be the battleground. More and more abortions will be done by pill and this will change how both sides fight. Medication abortion is quieter and more private, the intense personal interactions might not happen as much anymore. Of course, the political theater will continue, like the pro-abortion women who took abortion pills outside the court for the Mississippi case, and the anti-abortion protestors in front of places like Planned Parenthood. Both sides will come up with new arguments to fight.
“The symbolism might be different, but the fight will go on, and for many women, so will abortions, regardless of the laws and court decisions” (Tavernise).
The current landscape is so very different than before Roe v. Wade
“But on the other hand, things may be the same in that women will still have to scrabble to get an abortion, especially if Roe is rolled back. And the women who will face the biggest obstacles will still be low income women, which has always been the case. So in a way, everything has changed and nothing has changed” (Belluck).
Tavernise, Sabrina, and Pam Belluck, hosts. "The Future of America's Abortion
Fight." The Daily, New York Time, 16 Dec. 2021. Spotify, open.spotify.com/ episode/7yPYCq0KbhNYIM0KTk4MwJ?si=VQGLmnNIQoKJ7TGE7F36ig. Accessed 6 Jan. 2022.
"Roe v. Wade." History, A&E Television Networks, 22 July 2021, https://www.history.com/topics/womens-rights/roe-v-wade. 6 January 2022.
Barnes, Robert. "Supreme Court seems inclined to uphold Mississippi abortion law that would undermine Roe v. Wade." Washington Post, 1 December 2021, https://www.washingtonpost.com/politics/courts_law/mississippi-abortion-case-supreme-court/2021/12/01/367004a6-52b4-11ec-9267-17ae3bde2f26_story.html. 6 January 2022.
Liptak, Adam. "Supreme Court to Hear Abortion Case Challenging Roe v. Wade." New York Times, 1 December 2021, https://www.nytimes.com/2021/05/17/us/politics/supreme-court-roe-wade.html. 6 January 2022.