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Supporters of abortion access feared the worst when Texas lawmakers shocked the country with a law banning abortion beyond six weeks of pregnancy, standing in direct opposition to the precedent established in the landmark Roe v. Wade Supreme Court ruling. And the reduction in abortions in the first few months after SB 8 was palpable.
Since then, the situation in Texas has been heralded as a harbinger of what a post-Roe reality may bring nationwide. But more than six months after the law took effect that not only prohibits abortions once a fetal heartbeat is detected but deputizes private citizens as its enforcer, studies have pointed to a much smaller reduction in abortions than expected among the state’s residents due to alternate routes of accessing the services. Texans are still getting abortions – by going out of state or by ordering pills online.
However, just as the situation in Texas has often been called a preview of a post-Roe America, it also reveals how, for the anti-abortion movement, ending Roe won’t be enough.
“It’s a turning point,” says Mallory Carroll, vice president of communications at Susan B. Anthony List, an anti-abortion group, of the present moment. “It’s the beginning, really. It’s the beginning of a new phase of the pro-life movement where the work multiplies by 50.”
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Anti-abortion activists have made major inroads in recent months, as lawmakers in Republican-controlled legislatures have appeared to move with haste to pass a wave of controversial legislation, steamrolling ahead despite emotional pleas from Democrats and protesting constituents on the steps of statehouses. Just this week, Oklahoma lawmakers passed an abortion ban while two more possible bans loom in the state legislature, likely cementing the state as one where legal access to the procedure has been eradicated.
It’s perhaps the picture of a movement in its final stages, as the Supreme Court deliberates Roe’s future, with a decision expected come summer over a Mississippi case, Dobbs v. Jackson Women’s Health Organization, that experts believe will at least severely weaken the precedent, if not overturn it. But its next stage is already gearing up.
The Texas abortion ban, in place since Sept. 1 despite legal challenges from the state to the federal level, has become among the nation’s strictest abortion policies and spurred attempts to introduce copycat legislation in at least a dozen states. Last month, the Texas Supreme Court dealt a blow to abortion providers in the state in a ruling that effectively brings an end to their lawsuit against the controversial rule.
Nevertheless, Texans are still finding ways to get abortions. Two recent studies suggest that the number of abortions obtained has fallen by just around 10% despite restrictive abortion policies in the state due to large increases in the number of Texans who have ordered abortion pills online or traveled out of state.
Those two avenues are perhaps revealing the holes in anti-abortion advocates’ efforts to further limit access to the procedure, while inspiring their next moves.
Among the hoards of recent bills that have been introduced in states to restrict abortion are attempts to limit the ability to access abortion pills, while abortion opponents are apparently finding ways to thwart residents from leaving the state as well.
A recent proposal in Missouri that has since stalled would have allowed private citizens to sue anyone who helps a Missouri resident get an abortion in another state using the Texas-style mechanism that has become popular among conservative statehouses in recent months, deputizing private citizens to enforce a law.
“If your neighboring state doesn’t have pro-life protections, it minimizes the ability to protect the unborn in your state,” The Washington Post quoted the proposal’s sponsor, Mary Elizabeth Coleman, as saying.
According to the Guttmacher Institute, an abortion-rights research and policy organization, the effort to prohibit people from seeking abortions outside of their home state shows “just how radical the anti-abortion agenda truly is.”
“It’s like taking as much advantage as you can over new ways to make kind of like a nationwide abortion ban,” Carol Sanger, a law professor at Columbia University says.
Sanger says it’s just one example of the bold new restrictions states are introducing as they await the Supreme Court ruling in the Mississippi case expected this summer that could alter abortion’s trajectory.
“There’s a great confidence now by anti-abortion advocates and legislators that they’re going to win the Mississippi case,” Sanger says. “And so they feel very emboldened because what they think is Roe is going to get overturned.”
Rules like Missouri’s are expected to be the “ground zero of the legal battles after Dobbs,” the Mississippi case, according to Rachel Rebouché, the interim dean of Temple University’s law school and an expert in reproductive law, with some states seeking to enforce their rules beyond their jurisdictions while others work to proactively prevent states like Missouri from exercising their abortion policy beyond. And although the Missouri proposal was blocked, that doesn’t keep other states from trying to replicate it.
The passage of such a rule would mark a major shift in the anti-abortion movement – likely extending what has threatened to become a patchwork of states with varying abortion access to a national landscape that could limit abortion further than in the conservative states already poised to ban the procedure. In a post-Roe world, states where abortion remains legal will likely not be immune to the advances of those who seek to limit abortion.
Beyond fending off advances from anti-abortion lawmakers into their own states, clinics in states neighboring those imposing restrictions “say they’re just stuffed to the gills,” according to Sanger. “They’re almost not being able to provide the kind of medical care they want to provide because they’re getting all these medical refugees from Texas – and soon Florida and that whole bundle of states.”
Outside of fleeing Texas for abortion care elsewhere, Texans have utilized pills to get abortions despite the state’s restrictions. But that loophole has already become a target.
“Another thing that states are going to do: They’re trying to get rid of medical abortion pills,” Sanger says. “They’re saying, ‘Because we can see that that’s the weak link – that technology might bring us down.’”
According to the Guttmacher Institute, “With the U.S. Supreme Court primed to severely weaken or overturn Roe, medication abortion is likely to become even more critical in the delivery of care to many people.”
Medication abortion uses the drugs mifepristone and misoprostol to terminate pregnancies early on – up to 10 weeks. During the pandemic, the Food and Drug Administration suspended a requirement to pick up mifepristone in person after it’s prescribed, instead allowing people to receive the medication by mail. In December, the FDA made that decision permanent.
In 2020, the method made up 54% of all U.S. abortions, according to Guttmacher research.
Some proponents of abortion access have pointed to medication abortion as a key to the post-Roe era, offering a somewhat affordable and accessible alternative for some who seek an abortion early on in pregnancy.
Perhaps it is unsurprising then that medication abortion has become, as a recent Guttmacher analysis says, a “primary target of anti-abortion politicians and activists seeking to restrict care in and out of clinical settings.”
That’s been seen this year in the more than 100 restrictions introduced across at least 22 states that would limit medication abortion either by prohibiting the mailing of the pills, limiting provisions to physicians, limiting gestational age for use or by otherwise banning medication abortion entirely. At least four of those restrictions have been enacted so far this year.
But advocates also express concern that few Americans are aware of the option. According to a Kaiser Family Foundation survey from 2020, just about 1 in 5 Americans say they have heard about medication abortion.
Activists on the other side of the issue likewise express concern over a lack of education on medication abortion among the general public. But they instead tout what they say are its risks, referring to the procedure as “chemical abortion.”
“COVID was the excuse permitted by the FDA to really deregulate the distribution of chemical abortion drugs and everybody loves the idea of telemedicine – being able to stay home and talk to your doctor that way. But this is really harmful for women and also has the effect of turning mailboxes into abortion facilities basically,” Carroll says.
Even so, at least 19 states already ban the use of telehealth for medication abortion or require the pills to be taken in the presence of a health care professional. And once Roe is gone, medication abortion is widely believed to be the next hurdle.
“Our battle in a post-Roe world, with this Dobbs decision, does not mean our work is over – in fact it only means our work is beginning,” Students for Life President Kristan Hawkins says. “And so we definitely have our work cut out for us when it comes to fighting back against chemical abortion.”
The Supreme Court is expected to weigh in on Roe this summer, as it mulls the Mississippi law banning abortion after 15 weeks of pregnancy. The Mississippi rule is a direct challenge to the seemingly untouchable behemoth of constitutional law. Long the white whale of conservative activism, the landmark 1973 decision affirmed a right to an abortion before fetal viability – generally understood by experts to mean 24 weeks of pregnancy – and prevents states from imposing limits on abortion before that point in a pregnancy, often referred to as a “gestational limit.”
According to Carroll, “Pro-life activists believe that Roe was an extreme overreach on the part of the judicial branch of government,” pointing to the debate that’s ensued since Roe as an indicator that the issue isn’t settled “in the hearts and minds of the American people.”
“The bottom line is that all this activity on the part of state lawmakers is born out of frustration with the status quo imposed by Roe v. Wade, where really for the last 50 years states haven’t been able to pass laws that reflect the values of the people of that state with gestational limits on abortion,” Carroll says.
Accordingly, states appear to be gearing up for a new abortion frontier, brashly introducing restrictions and flouting current precedent as they await the high court’s ruling that could alter abortion’s trajectory expected this summer. But the end goal of the anti-abortion movement goes much further.
The ultimate goal, advocates agree, is more than to just make abortion unavailable.
“It’s not going to happen tomorrow, but the goal – you’ll hear many, many pro-life activists and lawmakers say this, you know – is to make abortion not only illegal but unthinkable,” Carroll says.
That has abortion activists gearing up for a fight that is perhaps only beginning to take shape and extends far beyond the nation’s statehouses.
“It’s a mammoth task ahead of us,” Carroll says. “It’s really the new phase of the pro-life movement. And it’s only beginning.”