By Lottie James*

           On June 24, 2022, the Supreme Court issued the highly anticipated opinion for Dobbs v. Jackson Women’s Health Organization,[1] a case that would determine the constitutionality of pre-viability prohibitions on elective abortions.[2]In their opinion, the majority overruled two previous rulings—Roe v. Wade and Planned Parenthood v. Casey—by determining that the Constitution does not confer a right to abortion and that the authority to regulate abortion is given to the individual states.[3] Prior to the Dobbs decision, numerous states had trigger laws—laws that would automatically ban a majority of abortions in the first and second trimesters upon the overturning of Roe—and several states never repealed their pre-Roe abortion bans.[4] The overturning of Roe did not make abortion illegal throughout the entirety of the United States, but the number of states with trigger laws and pre-Roe abortion bans meant that a significant number of states in the United States began to restrict access to abortions almost immediately following the Dobbs decision.[5] To address the need for increased access to abortions following the Dobbs decision and the resulting imposition of severely limiting state laws, advocates for access to safe abortions worked to identify ways to give access to abortions to citizens of states with restrictive abortion laws, including using telehealth to provide medication abortions. While telehealth is a great source for providing healthcare to those without local access, telehealth will only be a temporary solution as states work to ban out-of-state shipments of medication abortion. While telehealth is unlikely to be a permanent tool for accessing safe medication abortions, the right to abortion care can be achieved by the passing of a Congressional bill that would provide broad, national protections for abortion access; signing of an executive order that would nationally provide for access to abortions; passing of state-specific constitutional amendments to enshrine the right to abortion care in a state’s constitution.

            Following the Dobbs decision, many individuals seeking access to an abortion turned to telehealth providers; in fact, Melissa Grant, chief operating officer of carafem, a reproductive healthcare provider, stated that there was a 200 percent increase in telehealth abortions provided by carafem alone in the last year and that carafem expanded their telehealth offerings from five to fifteen states due to raising patient demand.[6] For those living in states that quickly restricted or banned access to abortions following the Dobbs decision, telehealth provided a much needed solution: access to abortions without having to endure the substantial costs of out-of-state travel.[7] Despite the many advantages of telehealth, such as relative ease of access and greater privacy, telehealth providers face significant structural hurdles in providing abortion care.[8] These structural difficulties include “low digital health literacy,” “limited interest access,” and lack of reimbursement for medication abortions.[9] These factors “create unnecessary barriers to care that mostly affect Black, Indigenous, and Latino communities, rural communities, and people with low income.”[10]

            In addition to structural hurdles, telehealth providers must contend with a rapidly changing legal landscape that may vastly differ between states. Access to telehealth abortion care is subject to state law, just like access to abortions within the state itself.[11] As of June 2021, six states banned the use of telehealth for abortions.[12] While some states ban the use of telehealth for abortions directly, nineteen states require the physical presence of the prescribing clinician thus making telehealth providers unable to provide access to abortions through telehealth under the state law.[13] At this time, it is nearly impossible to state with any certainty what access to abortions through telehealth providers with look like as more states create their post-Dobbs abortion laws beyond stating that access to telehealth abortion care will likely become dependent upon locality just like the availability of other forms of abortion care. Realistically, people will not stop getting virtual abortions even if they live in a state that bans telehealth abortion access; however, it will make getting a medicine abortion through a telehealth provider harder and riskier.[14]

            Given that access to telehealth abortions will depend on the laws of each state, telehealth providers will only be able to provide telehealth abortion care to individuals living in states that permit telehealth providers to proscribe medication abortions. It is probable, however, that the states that allow telehealth abortions will also be states that do not severely restrict access to abortions generally, so ultimately those who are most in need of telehealth abortion services due to a lack of resources in their state are the least likely to have access to telehealth abortions.

            While telehealth abortions may not be the permanent solution for addressing the demand for medication abortions, there are several potential solutions—some federal and others at the state level. First, Congress could pass a bill that would enshrine broad protections for legal abortion access throughout the United States that would then be signed into law by the president. A CBS/YouGov poll found that 58% of people favor a federal law making abortion legal, so there is public support for a bill that would legalize abortion nationwide.[15] Despite public support for a federal law that would legalize access to abortions, the Women’s Health Protection Act, a bill led by Senate democrats, was not successful.[16] The bill, which was triggered by the leaked draft of Justice Alito’s Dobbs opinion,[17] may have failed, but Democrat leadership has stated that they will continue to highlight the issue of abortion ahead of the November 8th elections.[18] Following Catherine Cortez Masto’s successful Senate campaign in Arizona, the Democrats have secured the Senate majority, so it is likely that the Senate Democrats will work to pass a bill that would guarantee abortion access across the United States.[19] Due to the new Republican majority in the House of Representatives, however, it is highly unlikely that a bill guaranteeing access to abortions will pass both the Senate and the House of Representatives.[20] Depending on the ability of Democratic lawmakers to gain the support of their Republican colleagues, Congressional action to enshrine abortion rights may be more or less likely to be an avenue of recourse for those who have lost their abortion rights following Dobbs. In addition to congressional action, wide ranging protections for abortion rights may be possible by executive order. President Biden has already signed two executive orders relating to access to abortion care since the Dobbs decision,[21] but he has yet to sign an executive order that provides a broad legal right to abortion. President Biden has emphasized that Congress must codify abortion rights, so it is unlikely that President Biden will choose to pursue an executive order that broadly grants the right to an abortion.[22]

Public opinion is in support of access to abortion as demonstrated by Gallup’s findings that 52% of people living in the United States believe that abortion is morally acceptable.[23] To capture this majority public support, states have sought voter support for state amendments to formalize abortion rights within specific states.[24] In August, Kansas voters rejected a state amendment that “would have said there was no right to an abortion in the state.”[25] This victory in Kansas is a positive sign for additional abortion-related amendments on the ballot in November.[26] The number of abortion-related amendments on the ballot this year is unprecedented[27] with fives ballot measures through the United States, including ballot measures in Kentucky[28], California[29], Michigan[30], Montana[31] and Vermont[32] in addition to the Kansas amendment. In all five states, the voters either voted in favor of creating a constitutional right to abortion access or voted against an amendment that would explicitly state that there is no right to abortion.[33] Given that voters in all five states with ballot amendments in the November 8, 2022 election voted in favor of access to abortion,[34] either by adding the right to abortion access to a state’s constitution or rejecting amendments that would proscribe the right to abortion access, state ballot initiatives to enshrine the right to abortions into the state’s constitution will be the most probable and clear path to securing abortion rights, albeit on a state-by-state basis. While telehealth is not a permanent answer to abortion access, it is a temporary solution that will provide much needed reproductive healthcare to those living in states with severely restricted access to abortions until either federal law or a successful ballot amendment initiative to add the right to abortion access to a state’s constitution can be used to secure guaranteed access to abortion care.

[1] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

[2] Id. at 2243.

[3] Id. at 2283-84.

[4] See Elizabeth Nash & Isabel Guarnieri, 13 States Have Abortion Trigger Bans—Here’s What Happens When Roe Is Overturned, Guttmacher Institute, https://www.guttmacher.org/article/2022/06/13-states-have-abortion-trigger-bans-heres-what-happens-when-roe-overturned (June 6, 2022); see Abortion Policy in the Absence of Roe, Guttmacher Institute, https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe (Nov. 1, 2022).

[5] See Sarah Knight, Wynne Davis, Kristin Gourlay, Carmel Wroth, Haidee Chu & Katie Daugert, Here’s where abortions are now banned or severely restricted, NPR, https://www.npr.org/sections/health-shots/2022/06/24/1107126432/abortion-bans-supreme-court-roe-v-wade (Oct. 11, 2022) (stating that Kentucky, Louisiana, South Dakota, Idaho, Tennessee, Texas, Arkansas, Mississippi, Missouri, North Dakota, Oklahoma, Utah, and Wyoming have restrictive abortion bans that were triggered by the overturning of Roe and stating that Wisconsin and Michigan still have their pre-Roe bans on abortion).

[6] Anuja Vaidya, Using Telehealth to Boost Abortion Access in a Post-Roe World, mHealth Intelligence, https://mhealthintelligence.com/features/using-telehealth-to-boost-abortion-access-in-a-post-roe-world (Oct. 13, 2022).

[7] Pien Huang & Mara Gordon, Telehealth abortion demand is soaring. But access may come down to where you live., NPR, https://www.npr.org/sections/health-shots/2022/05/20/1099179361/telehealth-abortions-are-simple-and-private-but-restricted-in-many-states (May 20, 2022).

[8] Vaidya, supra note 6.

[9] Id.

[10] Id.

[11] Ben Leonard, What’s next for virtual abortions post-Roe, Politico, https://www.politico.com/news/2022/06/24/whats-next-for-virtual-abortions-post-roe-00038085 (June 24, 2022).

[12] Emma Anderson, Alina Salganicoff & Laurie Sobel, State Restrictions on Telehealth Abortion, Kaiser Family Foundation, https://www.kff.org/womens-health-policy/slide/state-restrictions-on-telehealth-abortion/ (Dec. 02, 2021).

[13] Cong. Rsch. Serv., Medication Abortion: A Changing Legal Landscape (2002).

[14] Leonard, supra note 11.

[15] Jennifer De Pinto, Fred Backus & Anthony Salvanto, Most who support Roe see an overturn as a danger to women, other rights—CBS News poll, CBS News, https://www.cbsnews.com/news/roe-v-wade-supreme-court-overturn-opinion-poll-2022-05-08/ (May 9, 2022).

[16] Sahil Kapur, Senate Democrats’ bill to keep abortion legal nationwide falls to GOP-led filibuster, NBC News, https://www.nbcnews.com/news/senate-vote-nationwide-abortion-bill-ahead-roe-decision-rcna28183 (May 11, 2022).

[17] Read Justice Alito’s initial draft abortion opinion which would overturn Roe v. Wade, Politico, https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504 (May 2, 2022).

[18] Pinto, supra note 15.

[19] Democrats keep the Senate, Politico, https://www.politico.com/news/2022/11/12/senate-control-midterm-elections-results-2022-00066547(Nov. 21, 2022).

[20] Republicans flip the House, Politico, https://www.politico.com/news/2022/11/16/house-control-midterm-elections-results-2022-00066546(Nov. 21, 2022).

[21] Exec. Order No. 14076, 87 C.F.R. 42053 (2022); Exec. Order No. 14079, 87 C.F.R. 49505 (2022); see FACT SHEET: President Biden to Sign Executive Order Protecting Access to Reproductive Health Care Services, The White House, https://www.whitehouse.gov/briefing-room/statements-releases/2022/07/08/fact-sheet-president-biden-to-sign-executive-order-protecting-access-to-reproductive-health-care-services/(July 8, 2022) (stating that President Biden’s first executive order includes: a directive to the Secretary of Health and Human Services to provide a report regarding protecting access to medication abortion, ensuring access to emergency medical care, and expanding access to contraception; a directive to the Secretary of HHS and the Chair of the FTC to protect consumers privacy when seeking reproductive health services; and the establishment of an interagency task force responsible for “coordinating Federal interagency policymaking and program development”); see FACT SHEET: President Biden Issues Executive Order at the First Meeting of the Task Force on Reproductive Healthcare Access, The White House, https://www.whitehouse.gov/briefing-room/statements-releases/2022/08/03/fact-sheet-president-biden-issues-executive-order-at-the-first-meeting-of-the-task-force-on-reproductive-healthcare-access-2/ (Aug. 3, 2022) (stating that President Biden’s second executive order includes: a directive to the Secretary of HHS to consider “action to advance access to reproductive healthcare services”, including for those who are traveling out of state; a directive to the Secretary of HHS to consider all appropriate action necessary to ensure that health care providers comply with non-discrimination laws; and an update on the interagency Task Force on Reproductive Healthcare Access).

[22] Juliana Kim, A new executive order aims to preserve abortion access, but its reach is limited, NPR, https://www.npr.org/2022/07/08/1110455155/abortion-rights-biden-executive-order (July 8, 2022).

[23] Megan Brenan, Americans Say Birth Control, Divorce Most “Morally Acceptable”, Gallup, https://news.gallup.com/poll/393515/americans-say-birth-control-divorce-morally-acceptable.aspx (June 9, 2022).

[24] Michelle Long, 2022 State Ballot Initiatives on Abortion Rights, Kaiser Family Foundation, https://www.kff.org/policy-watch/2022-state-ballot-initiatives-abortion-rights/ (Sep. 20, 2022).

[25] Dylan Lysen, Laura Ziegler & Blaise Mesa, Voters in Kansas decide to keep abortion legal in the state, rejecting an amendment, NPR, https://www.npr.org/sections/2022-live-primary-election-race-results/2022/08/02/1115317596/kansas-voters-abortion-legal-reject-constitutional-amendment (Aug. 3, 2022).

[26] Id.

[27] Sarah Lehr, A record-number of abortion related questions are on states’ ballots this year, NPR, https://www.npr.org/2022/07/13/1111244760/a-record-number-of-abortion-related-questions-are-on-states-ballots-this-year (July 20, 2022).

[28] Constitutional Amendment 2, H.B. 91, Ky. (2021).

[29] Proposition 1, S.C.A.10, Cal. (2022).

[30] Reproductive Freedom for All, Proposal 22-3, Mich. (2022).

[31] Medical Care Requirements for Born-Alive Infants Measure, LR-131, Mont. (2022).

[32] Right to Personal Reproductive Autonomy Amendment, Proposal 5, Vt. (2022).

[33] Abortion on the Ballot, The New York Times, https://www.nytimes.com/interactive/2022/11/08/us/elections/results-abortion.html (Nov. 21, 2022) (stating that the ballot initiative in Kentucky to amend the state constitution to explicitly state that abortion is not a right failed with 52.3% of voters voting against the amendment; the ballot initiative in Montana to enact a law that would make an infant of any gestational age a legal person and criminalize health care providers “who do not make every effort to save the life of an infant ‘born during an attempted abortion’” failed with 52.6% of voters voting against the amendment; and the ballot initiatives in Vermont, Michigan, and California to amend the state constitutions to include the right to abortion care passed with 76.8%, 56.7%, and 67% of the votes respectively).

[34] Id.

 

*Lottie James is a Managing Editor on the Journal of Law & Inequality Vol. 41.