Welcome to the ‘Total Chaos’ Era of Abortion Access

Here's exactly what happens immediately, very soon, and in the not-so-distant future across post-Roe America.

By Kylie Cheung  |  June 24, 2022 | 2:27pm
AbortionPolitics
Welcome to the ‘Total Chaos’ Era of Abortion Access

Illustration: Rebecca Fassola

The fall of Roe didn’t happen overnight. The Supreme Court’s devastating Dobbs v. Jackson Women’s Health ruling is a culmination of decades of voter suppression and gerrymandering, the packing of the court system with anti-abortion hacks, a tireless right-wing culture war, and apathy and inaction from Democratic lawmakers who have struggled to so much as say the word “abortion” aloud for years.

“For 50 years, the anti-abortion movement was very clear about what their strategy was, which, number one, was stacking the Supreme Court to overturn Roe, and number two, eviscerating access to abortion in the states through state-specific bans and restrictions,” Erin Matson, executive director of the grassroots reproductive justice group Reproaction, told Jezebel. “At the same time, there was no parallel, unifying strategy for supporters of reproductive rights that was pursued with that level of clarity.”

Without Roe v. Wade, there is no more federally enshrined right to abortion in the U.S., leaving states across the country free to ban and criminalize it. A number of states planned ahead with pre-Roe bans and “trigger laws”—bans that take effect immediately or almost immediately after Roe falls—which are poised to end legal abortions in their states without delay. And even states where abortion remains legal will likely see access dwindle, as abortion providers start serving an influx of out-of-state abortion seekers.

left without a floor, providers and their patients are in free fall.

We’re about to watch “total chaos” ensue, according to Erin Grant, deputy director of Abortion Care Network, a coalition of nationwide independent abortion clinics. Indie clinics serve three out of five people who have abortions, and many operate in abortion-hostile regions. They are no strangers to the challenges wrought by state legislators determined to terrorize abortion providers and dehumanize pregnant people. But undoubtedly, the reversal of Roe marks the greatest challenge indie clinics, and all abortion advocates and providers, have faced to date.

As the old adage goes, Roe has always been the floor rather than the ceiling, never guaranteeing real-life access to care. But now, left without a floor, providers and their patients are in free fall. Here’s what happens next in this post-Roe country—immediately, very soon, and in the not-so-distant future.

Which states have trigger laws?

Thirteen states currently have trigger laws that could ban abortion immediately or within days of the fall of Roe:

  • Arkansas
  • Idaho
  • Kentucky
  • Louisiana
  • Mississippi
  • Missouri
  • North Dakota
  • Oklahoma
  • South Dakota
  • Tennessee
  • Texas
  • Utah
  • Wyoming

As if these trigger bans weren’t harmful enough, Guttmacher Institute reports nearly all of these bans lack any exceptions, save for a threat to the pregnant person’s life. Only Mississippi, North Dakota, Utah, and Wyoming allow exceptions for victims of rape. Jezebel previously reported on the ineffectiveness and stigmatizing nature of rape exceptions, and medical experts have cited the danger of only allowing abortion as a callous “hail Mary” for someone who may already be dying. But these bans are almost smug in their cruelty, in their refusal to even pretend to engage in some sort of compromise.

Of these trigger ban states, Texas and Oklahoma already effectively banned abortion before the Dobbs ruling. Abortion seekers in the other states could soon be forced to carry unwanted pregnancies to term, or shoulder the tremendous costs of traveling out-of-state to get abortion care. When this becomes reality, groups like the North Dakota Women In Need (WIN) abortion fund remain prepared to offer support to callers. “We anticipate an increased need for travel stipends, hotel vouchers, funding for abortion later in pregnancy, and requests for LARCs (long-acting reversible contraceptives) as a result of Roe falling,” Destini Spaeth of WIN told Jezebel in a statement.

The fund also explained that to meet these increased needs, it will require the continued “guidance of and collaboration with our state’s sole abortion clinic,” as well as “generous donations” from the public. Ahem.

To Spaeth’s point, it’s funds in states with trigger bans that will need your rage donations, more so than national reproductive rights organizations that have recently received millions from MacKenzie Scott.

A woman stands at the check-in window of the Hope Medical Group for Women in Shreveport, Louisiana, April 19, 2022. Texas’ S.B. 8 law has driven patients to the rapidly overflowing clinics of other states, forcing them to inexorably delay their abortion due to lack of space. Photo:François Picard / AFP (Getty Images)

Which states have trigger laws that won’t take effect immediately?

Of the above states with trigger laws, a handful have provisions that will render their trigger bans effective either 30 days after Roe’s reversal or as soon as they get certified by the state’s legislature, attorney general, or governor. Per Guttmacher, those states include:

  • Idaho (30 days)
  • Tennessee (30 days)
  • Texas (30 days)
  • Arkansas (Certification by attorney general)
  • Mississippi (Certification by attorney general)
  • Missouri (Certification by attorney general)
  • North Dakota (Certification by attorney general and legislature)
  • Oklahoma (Certification by attorney general)
  • Utah (Certification by attorney general and legislature)
  • Wyoming (Certification by attorney general and governor)

Yet, as previously noted, Oklahoma and Texas have already essentially banned abortion, effectively overriding this oh-so-generous buffer. “For almost a year, Texans have had to deal with Texas’ cruel and unjust abortion ban, S.B. 8, that has forced almost 90 percent of our callers to seek care in other states,” Texas Equal Access (TEA) Fund’s Kamyon Conner told Jezebel in a statement. “People in Texas have been living a post-Roe reality for a long time now.”

These grace periods, if you can call them that, won’t amount to squat in the grand scheme of things.

Which states have pre-

Ten states have pre-Roe abortion bans on the book. These laws differ from trigger bans, which were enacted after Roe was decided with the specific goal of banning abortion once Roe fell. Pre-Roe bans, on the other hand, went dormant after Roe, and it’s unclear whether they’ll take effect again now that the decision has been reversed. It all depends on whether governors, state legislatures, and especially attorneys general take action on them. The following are the 10 states with pre-Roe bans:

  • Alabama
  • Arizona
  • Arkansas
  • Michigan
  • Mississippi
  • North Carolina
  • Oklahoma
  • Texas
  • West Virginia
  • Wisconsin

A few of these states have both trigger laws awaiting the fall of Roe and pre-Roe bans. Texas and Oklahoma have already all but banned abortion. It is all, admittedly, confusing.

Notably, the Democratic Attorneys General Association already vowed that its members will not enforce abortion bans in their states—but of the above states with pre-Roe bans, only Michigan, North Carolina, and Wisconsin have Democratic attorneys general. Wisconsin Attorney General Josh Kaul previously spoke with Jezebel about his pledge to stop Wisconsin residents from being punished for having abortions in the state, while Michigan Gov. Gretchen Whitmer filed a lawsuit in Michigan’s state Supreme Court to throw out a pre-Roe ban earlier this year. Last month, a judge ruled in her favor.

Which states are expected to pass near-total bans on abortion now that

Several states passed and attempted to enact near-total abortion bans that were ultimately blocked in court, but could take effect now that Roe has been reversed. Georgia, Ohio, Iowa, and South Carolina have all signed into law six-week abortion bans, and on top of their trigger laws or pre-Roe bans, Idaho, Louisiana, Mississippi, North Dakota, Oklahoma, Tennessee, and Texas have six-week bans as well. Without Roe, all of these bans, and really all abortion restrictions that have ever been stayed or blocked in court, could soon take effect.

Meanwhile, Guttmacher Institute notes that states like Florida, Indiana, Montana, and Nebraska are hungry to enact total or near-total abortion bans soon, as they’ve each passed dozens of abortion restrictions in recent years. Nebraska Gov. Pete Ricketts has gone so far as to pledge to call the state legislature into a special session to enact a total abortion ban once Roe falls, which he’s boasted will offer no exceptions, even for rape victims.

Police keep an eye on protesters near the U.S. Supreme Court on June 13, 2022 in Washington, DC. Photo:Joe Raedle (Getty Images)

Will people be criminalized for having abortions?

Nearly 1,300 people faced criminalization for their pregnancy outcomes between 2006 and 2020. This number tripled compared with the period between 1973 and 2005, according to National Advocates for Pregnant Women—and the fall of Roe is likely to increase this risk.

“Instead of thinking about the end of Roe as the beginning of criminalization, we already know that’s been taking place, especially based on race, class, gender, sexuality, disability, income,” Rafa Kidvai, director of If/When/How’s Repro Legal Defense Fund, told Jezebel. “With Roe gone, we’re going to see more of that, and criminalization being more acceptable.”

Arkansas’ trigger ban would automatically make providing abortion a felony. In April, Oklahoma Gov. Kevin Stitt signed a bill that would also render providing abortion care a felony; Louisiana’s legislature is poised to send a similar bill to the governor’s desk, soon.

Last December, the FDA formally approved the prescription of medication abortion pills via telemedicine, and distribution of the pills by mail. Today, many advocates and abortion providers believe telemedicine abortion access could be vital to helping people safely end pregnancies post-Roe—already, as of March, medication abortion accounts for more than half of abortions, and is highly safe and effective through (at least) the first 10 weeks of pregnancy. But abortion-hostile states are increasingly enacting legislation to restrict access to abortion pills and telemedicine distribution of them. Advocates emphasize medication abortion will always be medically safe, and everyone should be able to access accurate information about it—as well as information about how to protect oneself from investigation and criminalization for self-managing an abortion.

Pregnant people in the U.S. have always faced criminal charges, even when abortion hasn’t been explicitly criminalized. And we can look to countries like Poland, where abortion is explicitly criminalized, to see what comes next: Doctors could soon be too afraid to offer life-saving abortion care; a national, state-run registry for tracking people’s pregnancies and pregnancy outcomes could soon be created; people who help others get abortion care will face criminalization. When the door is opened for abortion seekers and providers to be criminalized, in a country where maternal mortality rates—particularly for Black pregnant people—are already among the highest in the world, it’s no exaggeration to say that people will die.

Where do we go from here?

Shortly after S.B. 8 took effect in Texas, we saw how the number of out-of-state abortion seekers exponentially increased, both in states neighboring Texas and across the country. It will be vital for states with deep blue legislatures to take bold action in order to support abortion seekers both within their state lines and from out-of-state. Some already have: California, for example, passed legislation to expand who’s eligible to offer abortion care, and cover more costs of abortion under the state’s MediCal program. Connecticut passed legislation to protect people who travel to the state for abortion from criminalization. Portland, Oregon, recently established a public abortion fund in the city, and is one of three cities in the U.S. to offer paid leave to those who have abortions.

The work isn’t over for advocates in restrictive states. “Independent providers will still be innovating, contributing to telemedicine, contributing to some of the patient support services and networks that we’ve seen really pop up all over the country. That won’t change,” Grant told Jezebel. Creativity and compassion will be key to the future of abortion access: “My best vision for the future is that community-run and community-funded clinics and projects will arrive, and connect people to the care that they deserve.”

Matson emphasized that self-managed abortion with pills, as well as abortion funds or indie providers, will continue to do what they’ve always been doing. “The need for abortion is not going to go away. Abortion itself is not going to go away,” she said. “And we all have a role to play, helping people either find the information or resources to get the care they need.”

 
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