On June 24, 2022, the U.S. Supreme Court voted to overturn Roe v. Wade and the constitutional right to abortion in its ruling in the case Dobbs v. Jackson Women’s Health Organization. The 6-3 decision in Dobbs v. Jackson Women’s Health Organization dismantles the constitutional right to seek abortion and leaves the regulation of abortion to the states. Some states have already enacted extremely restrictive anti-abortion laws if not total bans, and many others will.
We have answered the most frequently asked questions on reproductive rights, and how the dismantling of the constitutional right to abortion will impact people of color.
Access to abortion care has been a fundamental part of reproductive health care for Black, Brown, and low-income people throughout the country. The legalization of abortion in the 1970s, following Roe v. Wade, led to a 9.6% increase in Black women’s college graduation rate, according to a study by the Institute for Women’s Policy Research. Abortion access also resulted in a 6.9% increase in Black women’s labor market participation rate. This was three times higher than the corresponding rate for women overall.
Overturning reproductive rights disproportionately harms Black, Brown, and low-income people who are most impacted by systemic inequalities. A recent study estimated that banning abortion in the U.S. would lead to a 21% increase in the number of pregnancy-related deaths overall and a 33% increase among Black people, because childbirth has a higher mortality risk than abortion.
Dobbs v. Jackson explicitly asked the Court to overrule Roe v. Wade, the landmark 1973 decision that established a constitutional right to an abortion. In 2018, Mississippi passed a law that, with few exceptions, prohibits elective abortions where the fetus has reached 15 weeks. Shortly after the law was passed, Jackson Women’s Health Organization — the only licensed abortion clinic in Mississippi — sued the state and sought an immediate order restraining the law’s enforcement.
Dobbs v. Jackson made its way to the Supreme Court where it was argued in 2022. In a 6-3 vote, the U.S. Supreme Court overturned the constitutional right to abortion. The decision overrules the right to seek abortion care established and affirmed by Roe v. Wade 1972 and Planned Parenthood v. Casey in 1992.
In Roe v. Wade (1973), the Supreme Court established that under the Fourteenth Amendment, which protects a person’s liberty interest against state deprivation without due process of law, a person has a right to choose to have an abortion before the end of the first trimester . The Court concluded that when a pregnancy reached this point, state interests in the life of the fetus are high enough to permit states to prohibit abortions or take efforts to promote the state’s interest. Nonetheless, even after that point the state could not regulate or prohibit abortion where such care was necessary for a person’s life or health.
This decision in Roe v. Wade meant that states did not have the right to ban abortion. Barred from flat-out banning abortion, states have passed more than 1,300 laws and restrictions that make it harder and more expensive to get an abortion. However, the court’s decision in Dobbs v. Jackson overturned the constitutional right to seek abortion care established in Roe.
In Planned Parenthood v. Casey, the Court affirmed its decision in Roe and recognized a constitutional right to decide to have an abortion before viability and to obtain it without undue interference from the state.
Planned Parenthood v. Casey was filed in 1992 to challenge the Pennsylvania Abortion Control Act, which required a waiting period, spousal notification, and parental consent for minors. The decision crafted the undue burden standard for abortion.
Even though the Supreme Court has overturned the constitutional right to abortion, abortion did not automatically become illegal nationwide. Individual states decide whether and when abortions are legal. Following the Dobbs decision, outright bans and significant restrictions are already in place in many areas, including Texas. Some courts have blocked these laws from taking effect.
Many states continue to allow abortion, and some have even begun making provisions to help serve those who live in states that are likely to restrict abortion. Some states have passed laws protecting reproductive rights and enshrining the right to seek abortion care in the state constitution. There were several abortion-related ballot measures in 2022 and voters overwhelmingly voted to protect reproductive rights.
The Dobbs v. Jackson decision ushered in a wave of abortion laws across the country. While many states moved to restrict or ban access to abortion, others enacted laws to protect the right to an abortion and enshrine the right in their state constitutions.
The Guttmacher Institute and Center for Reproductive Rights track legislation and policies related to reproductive rights and abortion across the country.
At least 13 states passed laws that completely ban abortions with extremely limited exceptions. Other state laws place severe restrictions and regulations that make accessing abortion care nearly impossible. Many of these laws include civil and criminal penalties for abortion providers. Laws criminalizing abortion provide tools for prosecutors to investigate and prosecute people who have abortions.
Several states already have laws that criminalize abortions, stillbirths, and miscarriages, but the Court’s decision to overturn Roe v. Wade will likely empower more states to pass similar legislation. Under these laws, people have faced criminal penalties for self-managed medication abortion. The two drugs used for medication abortion, mifepristone and misoprostol, have been approved by the FDA since 2000, and their efficacy and safety have been confirmed repeatedly. Several states already have “fetal personhood” laws that grant fetuses full legal rights that may be used to bring severe criminal charges against people accused of violating abortion bans. Under these laws, the loss of a pregnancy could result in homicide, feticide, or aggravated assault charge.
Black people are significantly more likely to be prosecuted and arrested under laws criminalizing abortion. A 2013 study by Pregnancy Justice (formerly National Advocates for Pregnant Women) analyzed hundreds of arrests and forced medical interventions on pregnant women between 1973-2005. 52% of the women arrested were Black. In the South, Black women comprised nearly three quarters of those arrested and charged.
People of color are more likely to live in states with the most restrictive abortion laws. The promise of Roe v. Wade has never been fully realized, particularly for people of color and people living on low incomes.
Fewer Black and Latino women in America have health insurance, especially in states with extreme abortion restrictions, according to the U.S. Census Bureau. For example, in Texas, Mississippi, and Georgia, at least 16% of Black women and 36% of Latinas were uninsured in 2019, some of the highest such rates in the country.
On June 13, 2024, the U.S. Supreme Court issued its decision in FDA v. Alliance for Hippocratic Medicine and Danco Laboratories LLC v. Alliance for Hippocratic Medicine and unanimously rejected the challenge brought by by anti-abortion advocates to limit access to essential abortion medication. The Court ruled that a group of anti-abortion physicians and medical organizations had no legal right to sue the U.S. Food and Drug Administration (FDA) for its actions expanding access to mifepristone – a safe and effective abortion medication that has been available in the United States for over two decades. The decision means that mifepristone will remain available.
Although access to mifepristone is not being restricted in this case, abortion access remains under attack in the post-Dobbs era. Black people have historically faced profound inequities in accessing reproductive and abortion care, and these inequities have been exacerbated by the Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. It is essential that we working to secure the rights of Black communities to access health care, including abortion care.
Mifepristone and misoprostol are drugs used to terminate pregnancy.
The FDA has approved the use of mifepristone together with misoprostol for medication abortion for over 20 years. Studies have shown that the combination drug regimen terminates pregnancies successfully 99.6% of the time. There is a 0.4% risk of major complications, and an associated mortality rate of less than 0.001%.
Misoprostol by itself is also effective for termination of pregnancy, but is 80% to 100% effective, compared to 99.6% when used with mifepristone. A misoprostol only regime is also stricter and slightly longer than the combination method. It can also cause more side-effects, such as pain and bleeding. However, the misoprostol-only method is very common throughout the United States and in other parts of the world.
Medication abortion involves the use of medication to terminate a pregnancy, as opposed to a procedural abortion. Medication abortion is safe and effective for virtually anyone who wants to end apregnancy within the first trimester. More than half of all abortions in the United States are medication abortions, and research has repeatedly shown that mifepristone and misoprostol, the two drugs used in medication abortion, to be both safe and effective, and mifepristone has shown no significant risk of harm to patients.
Mifepristone and misoprostol are approved by the Food and Drug Administration (FDA). Mifepristone and misoprostol are commonly referred to as the “Abortion Pill.” They can be safely used up to 10 weeks into a pregnancy. Unlike procedural abortions, medication abortions can be self-managed at home.
No. Mifepristone is still available for use. Moreover, patients can also use a different medication, misoprostol, instead of mifepristone for the termination of pregnancy.
On June 13, 2024, in FDA v. Alliance for Hippocratic Medicine, the Supreme Court rejected anti-abortion organizations’ attempt to limit the FDA’s actions regarding mifepristone. However, attacks on access to abortion care remain. For example, Louisiana passed a law designating mifepristone and misoprostol as “controlled and dangerous substances,” which could mean criminal penalties for people who handle the medication without a prescription.
Idaho v. United States and Moyle v. United States are U.S. Supreme Court cases concerning abortion access and protections for clinicians and patients under the Emergency Medical Treatment and Labor Act (EMTALA). This case centers on Idaho’s Defense of Life Act, which makes it a crime to provide an abortion except in a handful of narrow circumstances, including to save the life of the mother. The central question is one of state versus federal law – will Idaho’s law outweigh EMTALA’s long-standing requirements to provide critical abortion care to patients suffering emergency pregnancy complications?
LDF joined the National Women’s Law Center’s amicus brief in the case that argued that EMTALA protects access to all emergency medical treatment, including emergency abortion care. Dissolving protections for pregnant patients out of EMTALA will deepen the country’s maternal health crisis that disproportionately harms people in communities that face systemic oppression and disinvestment. Black, Indigenous, Latinx, AAPI, immigrant, and rural communities face significant barriers to primary and pregnancy-related healthcare, increasing their risk of pregnancy emergencies.
The Emergency Medical Treatment and Active Labor Act (EMTALA) is a federal law that requires Medicare-participating hospitals to provide emergency care to any individual, regardless of their ability to pay. EMTALA overrides state laws restricting access to abortion and protects clinicians who perform emergency abortions, regardless of the state they are in.
EMTALA requirements depend on whether an individual has an “emergency medical condition.” EMTALA defines this condition as one in which an individual exhibits “acute symptoms . . . such that the absence of immediate medical attention could reasonably be expected to jeopardize an individual’s health or result in serious impairment to bodily functions or dysfunction to bodily organs or parts.” For pregnant patients, an emergency medical condition includes any condition that endangers the health of the pregnant person or their unborn child.
The Dobbs decision and restrictive abortion laws have raised questions about a health care provider’s duty to provide emergency abortion services under EMTALA and state laws that restrict or ban abortion.
Increased abortion access has had a demonstrably positive economic impact on women, and on Black women in particular. When people have the ability to decide if, when, and how many children to have, they are able to make conscious determinations about other aspects of their lives, including education and work. The Institute for Women’s Policy Research found that abortion access increased college attainment for women, with “[i]ncreases in postsecondary attainment . . . concentrated among Black women, who had much larger decreases in teen fertility than white women.”
Children born to women with abortion access had lower rates of poverty, were more likely to graduate college, and were less likely to receive public assistance as adults. Conversely, the financial consequences of abortion denial can be severe. One study revealed that individuals who were denied abortions and eventually gave birth were four times more likely to have household incomes below the federal poverty level and were more likely to report being unable to afford basic necessities.
LDF supports efforts to promote equitable access to reproductive healthcare, emphasizing the impact of restrictions on abortion access on Black women and other pregnant people living in poverty, and has litigated to ensure nondiscriminatory delivery of babies, as well as the adequacy of health care and hospital services available to Black communities.
On June 13, 2024, in FDA v. Alliance for Hippocratic Medicine, the Supreme Court rejected anti-abortion organizations’ attempt to limit the FDA’s actions regarding mifepristone.
On January 30, 2024, LDF filed an amicus brief in support of the United States Food and Drug Administration (FDA) and Danco Laboratories, in FDA v. Alliance for Hippocratic Medicine and Danco Laboratories LLC v. Alliance for Hippocratic Medicine. The consolidated cases will be heard by the Supreme Court who will decide whether to affirm the Fifth Circuit Court’s opinion which would require the FDA to revert to a pre-2016 regime for the medication mifepristone. Should the Fifth Circuit’s decision stand, access to mifepristone will be threatened, including in states that have chosen to protect access to abortion care. The brief also outlines the importance of equitable access to abortion care, and that reducing access to mifepristone will contribute to health disparities and deepen inequitable access to health care that Black people already face due to structural and interpersonal anti-Black racism.
On April 7, 2023, LDF filed an amicus brief in the United States Court of Appeals for the Fifth Circuit in Alliance for Hippocratic Medicine v. FDA, a case regarding the U.S. Food and Drug Administration’s (FDA) approval of mifepristone.
LDF’s brief outlines the harms a ban on the sale of mifepristone would have on people who have relied on its availability for two decades. The impact would be acutely felt by Black and low-income people, who rely on the right to safe, legal abortion at higher rates than other groups, and face profound inequities in accessing essential health care as a result of a long history of systemic racism and discrimination. Over half of all abortions in the United States are medication abortions, which research has repeatedly shown to be both safe and effective, and mifepristone has shown no significant risk of harm to patients.
In September 2021, LDF joined an amicus brief with 17 other civil rights organizations in Dobbs v. Jackson Women’s Health Organization, which directly challenged Roe v. Wade and Planned Parenthood v. Casey. Together, those cases confirmed that the Fourteenth Amendment’s liberty interest includes the right to physical autonomy without government interference. Thus, the Court previously affirmed and reaffirmed that pregnant people have a right to choose to seek abortion care up to the point in pregnancy when a fetus becomes viable, which is usually around 24 weeks into the pregnancy. Only after that point in the pregnancy can the state limit or prohibit elective abortions.
The amicus brief highlights that substantially limiting access to late-term abortions, as the Mississippi law and other anticipated laws throughout the country would do, would inflict grievous harm on Black and low-income people in particular, who have relied on the right to an abortion—and the right to access abortion later in pregnancy—at higher rates than other groups.
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