A leaked document from within the walls of the US Supreme Court revealed a potential fault line that threatens to upend the foundation upon which abortion rights in the country have rested on for nearly 50 years: a reversal of Roe v Wade.
The leaked draft opinion, as reported by Politico, includes a quote from Justice Samuel Alito where he calls the seminal Supreme Court ruling “egregiously wrong from the start.” Politico reported that alongside him, four other Republican-appointed justices voted in the case Dobbs v Jackson Women’s Health Organisation to uphold a Mississippi law criminalising termination of a pregnancy after 15 weeks.
Though the decision has yet to be handed down in any official capacity, meaning abortion is still protected at the federal level, many began speculating on what kind of risks would be posed to a person seeking an abortion in a post-Roe world, with some turning back the pages in the history books to get a glimpse of what the future may hold.
Gillian Frank, a historian of religion and sexuality who co-hosts the podcast Sexing History, cautions that assuming there’s a one-to-one relationship between the pre and post-Roe realities of finding a safe and accessible abortion in the US is not prudent.
“Abortion is not illegal yet, and it won’t be illegal in all jurisdictions,” he said while acknowledging that the kind of travel that would be required for those seeking abortions outside of the specific states looking to restrict or remove abortions is definitely “not a perfect solution”.
The historian, who’s publishing a book on clergy members who helped women seeking abortions, does say that looking to the past can help inform the kind of risks that people seeking abortions might face today, particularly when you begin narrowing in on the demographics of those who suffered the most from restrictive abortion policies, even when those laws did seem to “cut across class and race’.
“People were harmed whether they were wealthy or poor, but the laws did disproportionately harm African American women and Puerto Rican women who died disproportionately from botched abortions as compared to white women.”
Should abortions become restricted, like they’re poised to in the 28 states and territories who have indicated they’d take action to ban abortion outright if Roe falls, the groups who are likely to suffer disproportionately are once again marginalised communities, the NARAL Pro-Choice America organisation wrote in an emailed response to The Independent.
Demonstrators hold up signs during a protest outside the U.S. Supreme Court over leaked document suggesting the overthrow of Roe vs Wade
“This is the most ominous and alarming sign yet that our nation’s highest court is poised to overturn Roe v Wade, ending the constitutional right to abortion as we know it and ripping away our freedom,” the statement read. “These bans and attacks on abortion access fall hardest on those most marginalised, including people of colour, LGBTQ people, people with low incomes and those in rural communities.”
The visiting lecturer at the University of Texas Austin did note with confidence that if there is one thing the past can confirm for us, it’s a point that would surely discomfort the pro-life activists and lawmakers in the US fighting for Roe’s reversal: abortions, whether they’re illegal or legal are going to happen one way or another.
“American women have always sought abortions,” the historian said. “What has only changed is the context and the safety and the affordability and the availability but abortion seeking itself has been an ongoing fact of American reproductive life since the founding.”
Historically, women who had the financial means, either through their own resources or their families, he explained, would travel to foreign countries, such as Japan or Switzerland, or even towns along the Mexican border to engage in a kind of medical tourism.
“Whenever you were in what was called a grey market or a black market where there was not regulation or legalisation, what you had was a seller’s market,” he explained, noting that this kind of market was ripe for exploitation, and this could also be the case going forward.
As recently as last fall, that trend was beginning to play out in southern states that neighbour Texas, a state that banned abortions as early as six weeks into a pregnancy in September.
A Vice article reported on how an Oklahoma City clinic became so overwhelmed by Texans seeking the procedure, it was forced to begin sending their own patients to a sister clinic in Wichita, Kansas. The same clinic said that before the 1 September ban that Texas enacted, these out-of-state patients from the southern state made up about 1 per cent of people seen at the clinic. By November, it was closer to 20 per cent.
“We’re not hearing from them when they say, ‘As it turns out, I couldn’t get care and now I’m being forced to carry a pregnancy against my will,’” said Emily Wales, interim president of Planned Parenthood Great Plains to Vice. “But we are going to see, I think, increased levels of desperation and people feeling forced to make decisions they should never have to make.”
Desperate medical consumers, as Dr Frank called them, when women became “unwillingly pregnant and did not have the wherewithal to find medical resources”, were often forced “to take [their] life into their own hands” and find treatment elsewhere, oftentimes risking their own safety.
“Doctors knew full well that the people they were denying who came in through the front doors of the hospitals would often come in through the emergency room,” he said.
Nick Jones, a 65-year-old Floridian, recalls a haunting family story that was passed down from his mother which reflects that same kind of desperation that ultimately ended in devastation.
When his mother, born in 1926, was 15 years old, one of her best friends, Jesse, also 15, became pregnant.
“It was Malvern, Arkansas in the 1940s so it was all dirt roads and not a whole lot of options,” he said in a phone interview. The girls sought out a local woman to perform a backdoor abortion on the teen, but the side effects from the procedure were immediately not what they should be.
“My mom described how she began haemorrhaging all the way back to town,” he says, recalling how the painful experience continued to disturb his mother well into her adult life. Jesse, he said, was taken to the hospital, through the emergency doors, but never came out. She died two days after being admitted from what Mr Jones suspected was blood poisoning.
What the past can tell us, Dr Frank notes, is something that holds true in the present, and the future. That is, restricting abortion “does not stop people from desiring, seeking and getting abortions”.
“What it affects is the expense and the quality of abortions, the kind of medical care you can get.”
The World Health Organization estimates that around the world, 23,000 women die each year from unsafe abortions, with thousands more experiencing health complications from the unregulated procedures.
And a recent study estimated that banning abortions in the US might actually increase the number of pregnancy-related deaths in the country by 21 per cent, with a 31 per cent increase among Black women.
That study would support recent findings from the Centers for Disease Control and Prevention. In 2020, the federal agency released updated statistics for the maternal mortality rate in the country, a rate that is defined as people who died either while pregnant or within 42 days of the end of their pregnancy.
Before the pandemic, the country’s maternal mortality rate sat uncomfortably high at 20.1 deaths per 100,000. The most recent data from after the pandemic, however, shows that maternal mortality rate increasing to 24 maternal deaths per 100,000, a rate that is more than three times the rate of 10 other high-income OECD countries, including Canada, the UK, Australia and Sweden.
When this data is then spliced into demographics, it reveals how race and class also seem to infiltrate women’s maternal healthcare in the US. Black women died at a rate nearly three times that of white women, which was an increase from 2019 when it was 2.5 times
“When we look at abortion before Roe, what we see is a wide discrepancy in service and safety,” said Dr Frank. “What we don’t see is the law acting as an effective barrier to abortion seeking. It just stigmatised it.”
Researchers and activists who are working to protect the 1973 landmark legislation also argue that denying a woman an abortion not only has immediate repercussions on their health, especially if they attempt to seek out a back-alley procedure, but in the distant future as well.
The Turnaway Study, conducted by the University of California San Francisco, is a longitudinal study that examines the effects of unwanted pregnancies on women’s lives. In their findings, it highlights how the denial of the procedure can increase a woman’s economic hardship, with those women studied experiencing an increase in household poverty lasting at least four years relative to those who received an abortion.
More damning, however, were the long-term health repercussions for the women who the school followed in the study.
“Women who were denied an abortion and gave birth reported more life-threatening complications like eclampsia and postpartum hemorrhage compared to those who received wanted abortions,” the school’s authors wrote in their factsheet, while the same group denied abortions also reported experiencing more chronic headaches, joint pain, and gestational hypertension.
“The higher risks of childbirth were tragically demonstrated by two women who were denied an abortion and died following delivery. No women died from an abortion,” the study concludes from their findings.
While the risks for carrying a child to full term are higher than having a medically authorised abortion, doctors and public health practitioners fear that losing access to the latter could lead to an uptick in the kind of procedures that were common in the 1930s, like the kind Mr Jones described his mother witnessed back in Arkansas.
Ana Langer, a professor of the practice of public health at Harvard University, said during an interview with the institution shortly before the New Year that she was gravely concerned about the potential for Roe v Wade to be reversed, particularly as it relates to women’s health.
“Restricting women’s access to safe and legal abortion services has important negative health impactions,” Dr Langer said. “We’ve seen these laws do not result in fewer abortions … they compel women to risk their lives and health by seeking out unsafe abortion care.”
Dr Langer, though speaking to Harvard months before the leaked document would surface, reiterated her concerns for women’s health in a hypothetical reversed-Roe future: “If the current trend in US politics persists, ‘back alley’ abortions will be the last resource for women with no access to safe and legal services,” she said.
“And the horrific consequences of such abortions will become a major cause of death and severe health consequences for some of the most vulnerable women in this country.”