Regulation

The Impact of Overturning Roe v. Wade Will Be Less Dramatic Than Abortion-Rights Advocates Fear

Abortion is likely to remain legal in most states, and workarounds will mitigate the effects of bans.

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Last year, based on a scenario in which 22 states banned abortion, Middlebury College economist Caitlin Knowles Myers projected that the annual number of abortions in the U.S. would fall by about 14 percent. In Texas, which banned the vast majority of abortions last September and avoided early judicial intervention by restricting enforcement to private civil actions, the net impact seems to have been a drop of about 10 percent.

Americans should keep those surprisingly modest estimates in mind as they try to predict what will happen after the Supreme Court overturns Roe v. Wade, as a leaked draft of the majority opinion in Dobbs v. Jackson Women's Health Organization suggests it will soon do. While many states are expected to respond by imposing severe restrictions on abortion, most probably will not. And even in states that ban elective abortions, workarounds will mitigate the impact of those laws.

Those options, which include traveling to clinics in other states and obtaining pills for self-induced abortions, will entail additional time, effort, cost, and in some cases legal risk. The new burdens will be prohibitive for many women, especially those with low incomes, inflexible work schedules, or pressing family responsibilities. But the net effect will not be nearly as dramatic as pro-life activists might hope or pro-choice activists might fear. "A post-Roe United States isn't one in which abortion isn't legal at all," Myers observed in an interview with The New York Times. "It's one in which there's tremendous inequality in abortion access."

According to a tally by the Center for Reproductive Rights (CRR), "abortion will remain legal" without Roe in 21 states where abortion rights are protected by statute or by judicial interpretations of state constitutions. Bans seem unlikely in another seven states. While the CRR classifies 25 states as "hostile" to abortion rights, that list includes Michigan, Pennsylvania, and Wisconsin, all of which have pro-choice governors.

CRR says "Michigan lawmakers will likely try to prohibit abortion" and "Wisconsin lawmakers may try to prohibit abortion." But in both cases, they would need a two-thirds majority to overcome a veto. The same is true in Pennsylvania, where the CRR concedes "abortion will likely remain accessible."

Myers' projection was based on the assumption that 22 states will quickly move to ban elective abortions. (Her list includes Michigan but omits Pennsylvania, Wisconsin, and Wyoming, another state that the CRR classifies as "hostile.") That would make abortion illegal in large swaths of the South and Midwest, plus several states in the West. Myers calculated that the average distance to an abortion clinic for women of childbearing age affected by the bans would rise from 35 to 279 miles. The upshot, according to her model, would be a nationwide reduction in legal abortions of "at least 14 percent."

One reason that number is lower than you might expect: The states that are likely to ban abortion already have relatively low abortion rates. But it is also true that increasing the distance to the nearest clinic, even as dramatically as Myers expects, will deter some but not all of the abortions that women would otherwise obtain. As Myers emphasizes, the burden will fall heaviest on women of modest means with the farthest distances to travel.

When Texas banned abortion after fetal cardiac activity can be detected (which typically happens about six weeks into a pregnancy), the number of abortions performed by clinics in that state fell by half. But many women traveled to clinics in other states or used pills to perform self-induced abortions. The upshot, judging from studies of both workarounds, was that the net reduction in abortions obtained by Texas women was roughly one-fifth the apparent decrease.

That experience may be misleading as an indicator of what will happen even in Texas after the Supreme Court overturns Roe. Arkansas, Louisiana, Mississippi, and Oklahoma—all of which saw influxes of Texas women seeking abortions—are likely to ban the procedure once they are free to do so. But abortion is expected to remain legal in three other nearby states: Colorado, Kansas, and New Mexico. Women who live far away from such options—in southeast Texas and Louisiana, for example—will face the biggest obstacles.

The other major workaround is abortion pills. The Food and Drug Administration (FDA) has approved the use of mifepristone and misoprostol up to 10 weeks into a pregnancy. The method has potentially broad appeal in the United States, where four-fifths of abortions are performed at nine weeks or earlier.

Last December, the FDA permanently lifted a longstanding requirement that abortion pills be dispensed in person, opening the door to prescriptions via telemedicine and home delivery. That decision is apt to accelerate a preexisting trend: Based on preliminary data, the Guttmacher Institute (which supports abortion rights) reports that "medication abortions" accounted for 54 percent of the U.S. total in 2020, up from 39 percent in 2017.

Texas and 18 other states already have restricted the use of abortion pills, requiring clinic visits and banning mail delivery. Texas recently went further, making it a felony to supply the drugs for unsupervised use. But enforcement of such bans will face obstacles even more daunting than the difficulties encountered by the war on drugs, since abortion pills will remain legal in most states.

Aid Access, which enables women to obtain abortion pills from abroad based on prescriptions written by a doctor in Austria, saw a huge increase in requests from Texas after that state's ban took effect. And Aid Access is by no means the only source of abortion pills, which can be obtained through various websites, purchased over the counter in Mexico, or received in states that allow delivery by mail after an online or phone consultation. Organizations such as Hey Jane and Abortion on Demand facilitate that last option.

There is no question that overturning Roe will reduce access to abortion. The obstacles created by state bans will impose real, sometimes prohibitive hardships on many women. But given the inevitability of those bans, abortion rights supporters who are venting their rage at the Supreme Court's expected decision would have a bigger impact by focusing their energy and resources on alleviating those hardships.