Roe v. Wade fell. The American Supreme Court overturned, Friday, June 24, its famous judgment of 1973 which guaranteed the right to abortion at the federal level, that is to say on the whole territory of the United States. In a 213-page document*, a majority of six judges (all conservatives) out of nine believe that “Ihe Constitution makes no reference to abortion and none of its articles implicitly protects this right”. “It is time to return the issue of abortion to the elected representatives of the people” in the Congresses of each State, say the magistrates in conclusion of their decision.
This dismissal, anticipated for several months, is not a surprise. But it remains a real earthquake for American women: in the absence of Roe v. Wade, half of the 50 states will prohibit or severely limit access to voluntary termination of pregnancy (abortion), warns the Guttmacher Institute*.
“This is the goal that the anti-abortionists have been trying to achieve since the 1973 judgment recognized abortion as a constitutional right”, denounces Ianthe Metzger, director of communications at the Planned Parenthood Federation of America (PPFA). Franceinfo illustrates these five decades of attacks against abortion in the United States, with supporting infographics.
Protect or ban abortion: a country now cut in two
The reversal made by the Supreme Court had been expected for several months. “By agreeing to speak out on a Mississippi law that prohibits abortion after 15 weeks of pregnancy [alors que la plus haute juridiction américaine n’a aucune obligation de se saisir d’une affaire], the judges showed that they were not going to defend their jurisprudence of 1973″, explains Ianthe Metzger to franceinfo. Women’s rights advocates immediately warned of the deep division that will cross the country after the overthrow of Roe v. Wade.
The effects of this historic decision will be felt immediately since each State can now decide on its own abortion legislation. A dozen thus totally banned abortion as soon as the Court delivered its judgment on Friday, reports the New York Times*.
Based on data from the Center for Reproductive Rights* and the Guttmacher Institute*, we can currently classify the 50 American states into three categories: first, those whose law protects the right to abortion, authorizing this act in timeframes equal or similar to Roe v. Wade (who set the limit at the threshold of fetal viability, around 24 weeks of pregnancy); those that prohibit abortion or drastically reduce the legal time limit; finally, three States which have not adopted a text explicitly protecting this right, but which do not for all that prohibit it.
Nearly half of American states are affected by restrictions or the end of the right to abortion. Anticipating a reversal of the Supreme Court, 13 of them had adopted trigger bans in recent years, details the New York Times*. These laws that prohibit abortion automatically take effect after the overthrow of Roe v. Wade, some from June 24 and others in the days that follow.
In other States, the decision of the Court will allow texts suspended by justice to be applied again. Some of these laws were in force before the 1973 judgment. Others had been passed in recent years, such as the one prohibiting abortion after six weeks (a threshold below which many pregnancies are not yet known) in Ohio.
But the list of States “hostile” to abortion could still evolve. According to the Guttmacher Institute, Montana and Indiana, for example, will probably ban this procedure in the coming months. The governor of Nebraska has also promised a similar measure. In this conservative state, abortion is currently legal up to 20 weeks of pregnancy, but with restrictions on certain types of procedures from the second trimester, specifies the Guttmacher Institute*.
The Planned Parenthood Federation of America is also concerned about the situation in Virginia and New Hampshire, two states that have not passed legislation explicitly protecting the right to abortion. “The current governor of Virginia is anti-abortion and there have been attempts to pass laws restricting this right in New Hampshire in recent years, points out Ianthe Metzger. We hope, however, that New Mexico will quickly pass legislation to guarantee this right.”
Fifty years of anti-abortion laws
The Supreme Court’s decision is therefore not the first blow to the right to abortion. Between the 1973 judgment and May 2022, nearly 1,400 laws attacking abortion were enacted in the various American states, reveals the Guttmacher Institute*. This figure includes the trigger bansbut also laws suspended by justice and texts which limit the real capacity of women to have an abortion, by imposing additional constraints on them (such as a period of reflection).
Nearly half of those laws were passed in the past decade, notes the Guttmacher Institute. And this trend accelerated further after the appointment to the Supreme Court by Donald Trump, at the end of 2020, of Justice Amy Coney Barrett. With it, the highest court in the country now has six out of nine conservative magistrates. A large majority who have “encouraged Republican state lawmakers to be more aggressive in their attacks on abortion rights”underlines to franceinfo Mary Ziegler, historian specializing in reproductive rights at Florida State University.
In 2021 alone, 108 laws restricting the right to abortion were enacted in 19 American states, reports the Guttmacher Institute*. And 2022 could be even worse, according to the organization*: between January 1 and May 25, 42 texts attacking abortion have already been signed by the governors of eleven conservative states. At the end of May, Oklahoma also became the first American state to ban abortion from fertilization, reports national radio NPR*.
Multiple barriers to access to abortion…
Besides Roe v. Wade, another Supreme Court decision frames the right to abortion: Planned Parenthood v. Casey. Since 1992, this decision prohibits States from taking measures constituting a “excessive burden” for women wishing to terminate their pregnancy (such as, for example, requiring them to obtain the agreement of their spouse). This judgment, however, authorizes the various legislatures to set the terms of recourse to abortion, underlines the Center for Reproductive Rights*.
“Planned Parenthood v. Casey paved the way for a whole series of measures which are not found to be unconstitutional but which in fact restrict access to abortion.”
Ianthe Metzger, Director of Communications at PPFAat franceinfo
Among these obstacles to abortion, the obligation to wait 24 to 72 hours between the first consultation with the doctor and the procedure itself. Twenty-seven states required this cooling-off period, yet deemed unnecessary and stigmatizing by the World Health Organization (WHO), before the Supreme Court’s decision on Friday, reports the Guttmacher Institute *. Twenty-eight compelled doctors to give certain information to their patients, “with the aim of discouraging them and sometimes with erroneous assertions”, denounces Ianthe Metzger. And 36 demanded to inform, even to obtain the agreement of the parents of a minor wishing to put an end to her pregnancy.
Click on the drop-down menu at the top of the map to see the different criteria studied.
Another obstacle to abortion: the ban on doctors in 18 states from prescribing abortion pills during teleconsultations. The use of this drug, used to end a pregnancy during the first weeks after fertilization, has increased sharply in recent years in the United States. In 2020, the abortion pill represented 54% of abortions performed in the country, according to the Guttmacher Institute*.
In states where access to abortion is very limited, it is a cheaper and less invasive option for many women. Its use has particularly developed during the Covid-19 pandemic, the American drug control agency having authorized its prescription during online consultations. But the abortion pill is now the new target of anti-abortion drugs, notes the New York Times*.
… which have led to strong inequalities across the country
Long before the reversal of the Supreme Court, these barriers effectively restricting access to abortion have caused strong disparities between States. In 2017, the abortion-seeking rate was just 1.3 per 1,000 women ages 15 to 44 in Wyoming. On the other hand, it was 30.2 in the federal capital, Washington, according to figures from the Guttmacher Institute*.
These difficulties of access have also forced many American women to travel outside the limits of their State to obtain an abortion. “In Missouri or Mississippi, only one clinic offers this procedure. In Idaho, there are only three, while neighboring Oregon and Washington state [dans l’Ouest du pays] have many more centers”, emphasizes Ianthe Metzger, of Family Planning. For residents of Idaho, it is therefore often easier, and faster, to travel to these two states.
In 2017, nearly a third (30.73%) had abortions outside Idaho, according to the journal. The Lancet*. The share of abortions performed outside the State of residence reached, this same year, 50.81% in Mississippi, 56.14% in Missouri and the record figure of 74.4% in Wyoming. In contrast, we find California, with only 0.11% of abortions performed outside the state in 2017.
With the overthrow of Roe v. Wade by the Supreme Court, it is now entire regions that will be transformed into “anti-abortion deserts”, warns Ianthe Metzger. In these areas, the average distance to access a center performing abortions will increase from 53 to 453 kilometers, estimates an analysis cited by the New York Times*. A quarter of women wanting an abortion will then forego the procedure, according to the study. In question in particular: the cost and the time necessary for such a trip, prohibitive for the most modest Americans.
Even the wealthiest risk being deprived of the recourse constituted by the “sanctuary States” which protect abortion. According to CNN*, Missouri lawmakers are considering several bills that would make it possible to prosecute women who abort outside the territory or anyone who helps them in the process.
“Missouri won’t be the only state trying to regulate what happens outside its borders.”
Mary Ziegler, historianat CNN
Faced with this new threat, Family Planning offers the same solution as that formulated by Joe Biden on Twitter* may’s beginning. “We must vote for pro-abortion candidates in the midterm elections in November, hammers Ianthe Metzger. This is the only way to give the federal Congress the power to legislate to protect the right to abortion nationwide.”
* Links marked with asterisks refer to content in English.