Consider This from NPR - The Impact of Restrictive Abortion Laws in 2023

Episode Date: December 21, 2023

Nearly two years into Roe v. Wade being overturned, pregnant people continue to have a hard time accessing abortion and miscarriage care. This year saw the addition of new restrictive abortion laws in some states and protection of existing abortion laws in others. What does this mean for abortion care in 2024, and how might all of this affect the 2024 elections?NPR's Juana Summers digs into these questions with health policy reporter Selena Simmons-Duffin and national political correspondent Sarah McCammon.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Good evening. In a landmark ruling, the Supreme Court today legalized abortions. The case of Jane Roe, a pregnant woman in Texas who sued for access to abortion, enshrined abortion rights for decades. Now, nearly 50 years later and nearly two years after that historic decision was overturned, another Texas woman has filed another lawsuit suing for the right to abortion. The 459th District Court is now in session. Your proposed temporary restraining order. Kate Cox was carrying a fetus with a severe genetic disorder that usually results in death. Continuing the pregnancy to term could have endangered her future fertility. Well, Your Honor, we're working on a very

challenging timeline here and that the care that Ms. Cox needs is quite urgent. The question at the center of this case is how severe do complications in a pregnancy have to be before a person is allowed an abortion? When she was around 20 weeks pregnant, Cox began experiencing severe symptoms that sent her to the emergency room multiple times in a two-week period. I think the one thing that people really need to remember is that pregnancy itself is not a health neutral situation. Dr. Andrea Palmer is an OBGYN in Fort Worth, Texas. She is not involved with Cox's case, but spoke to NPR about the greater issues pregnant people face. Asking a woman to carry a fetus to term that is not going

to live to survive much after the C-section she's going to be required to have to deliver it is just putting her at risk for every pregnancy thereafter. Texas is home to three overlapping abortion bans. There is an exception that allows abortion when the mother's life is threatened or when a pregnancy, quote, poses a serious risk of substantial impairment of a major bodily function. Cox thought she would be a good candidate for the exception. She enlisted the Center for Reproductive Rights and filed an emergency petition asking Texas courts to protect her from legal penalties so she could get an abortion. District Court Judge Maya Guerra Gamble did grant Cox permission to get an abortion. The idea that Ms. Cox wants desperately to be a parent miscarriage of justice.

But then Texas Attorney General Ken Paxton appealed that decision to the Texas Supreme Court, which ultimately ruled Cox couldn't get an abortion. Here's Dr. Andrea Palmer again, who was not directly involved in the case. You know, I think the problem with trying to legislate medical care is that there are so many nuances, there are so many situations that you can't write a law for every scenario that might happen. That's why taking the decisions out of the hands of the patient and the physician is just really dangerous and scary.

With the clock ticking, Cox ultimately made the decision to leave Texas to get an abortion. Before the Texas Supreme Court ruled, Cox couldn't get an abortion in her home state. Molly Duane is senior staff attorney at the Center for Reproductive Rights, representing Cox, her husband, and her doctor. Everyone in her state has said they can't take responsibility for the human suffering that she is going through. Not the courts, not the medical board, and certainly not the attorney general. Cox's case is indicative of the limbo many women find themselves in in this post-Roe world,

especially when they are facing serious pregnancy complications. Molly Dwayane again. And in the two years that these abortion bans have been in effect in Texas, the attorney general and officials for the state have remained eerily silent. They have refused to tell anyone what the exception means. And all we know now is that no one thinks that Kate Cox was sick enough. And that should be truly chilling because it means, I think, that the exception doesn't exist at all.

And I think any regular person can look at her case and say, well, surely Kate should qualify. So I guess my question is, if she doesn't, who does? Consider this. Kate Cox's situation demonstrates just one of the ways abortion access has changed since Roe was overturned. There are countless others. What has that meant to people seeking abortions and what could it mean in the coming election year? We will dig into those questions.

From NPR, I'm Juana Summers. It's Thursday, December 21st. It's Consider This from NPR. NPR's Sarah McCammon and Selena Simmons-Duffin have been reporting closely on what's been going on in the world of abortion rights. They both join me now. And Sarah, I want to start with you here and a big picture look. What has been happening this year in terms of the legal landscape? Well, you know, this was the first full year without Roe v. Wade after the Dobbs decision was issued in June of 2022. So currently, according to the Guttmacher Institute, which supports abortion rights, 14 states have total or near total abortion bans,

seven more prohibit abortion sometime before 18 weeks. And at the same time, 22 states and the District of Columbia have passed protections this year for abortion access. So there's really been an intensification of this divide we see where access depends on where you live. Also, more patients have been coming forward with stories about being turned away for emergency abortion care. Some of them are fighting back by filing lawsuits. And because of all this, we're seeing continued political fallout. Selena, to you, we know that people are still getting abortions, and there is data that suggests that the number of abortions actually rose in 2023. Explain how that could be the case when so many states have moved to limit access. There may be an increased demand

for abortion because of the economy. It could be because of reduced stigma as more people talk about their experiences with miscarriage and abortion. There's also way more information out there about what state laws are and different options for ending a pregnancy. So in states with bans, people who are seeking abortions and have the money to do this are just traveling to states where it's legal. There are abortion funds that will pay for people's child care and airfare and hotel if they don't have the money on their own. And abortion clinics have hired more staff, extended their hours, even relocated whole clinics to be able to see more patients. Of course, there are people who have been turned away. One study found that birth rates increased in states with abortion bans since these new laws

took effect. Selina, remind us who's being impacted the most by all of this. The real demographic differences in terms of access are financial. Who can afford to travel and who can't? And because of the racial wealth differentials in the U.S., that means low-income people of color are the most likely to be stuck. As an example, I spoke with Samantha Cassiano last spring. She didn't have the money to leave the state of Texas when she was pregnant with a fetus that had an encephaly. That's a condition where the brain and skull do not fully form. It's always fatal. And she told me she remembers when her

doctor delivered the news. And then I asked her, you know, hey, what are my options? And she says, well, because of the new law, you don't have any options. You have to go on with your pregnancy. Her daughter, Halo, was born early and lived for four hours, and Cassiano scrambled to raise money for a funeral and a headstone. She's now a plaintiff in a lawsuit arguing that the Texas abortion ban exception for medical reasons is too narrow and that that harmed her. Sarah, to you, what is the response to these stories been like? You know, it's important to understand that poll after poll suggests that most Americans support at least some legal access to abortion, particularly in situations like the ones we've been talking about where there's an emergency medical crisis and abortion is the recommended standard of care. So abortion rights opponents who have supported these laws have had varying

responses. You know, some have suggested that Kate Cox, who we heard about earlier, should carry the pregnancy to term and give birth regardless of how it might affect her future fertility. There are activists who are committed to that idea. But just as often, if not more often, I've heard Republican politicians downplay the idea that these laws are meant to prevent abortions in these cases. Earlier this year, I interviewed the architect of one of these laws, Texas Law SB8, which first took effect in September 2021. This is the one that allows civil lawsuits against anyone believed to have been involved in providing or helping someone get an illegal abortion, and it banned most abortions after about six weeks. So Jonathan Mitchell is a lawyer based in Austin who helped Republican lawmakers draft that legislation. I asked him

about one specific case in Texas involving a woman named Ana Zargarian. She's one of the plaintiffs in the Center for Reproductive Rights case that we've been talking about. She had to fly to Colorado for an emergency abortion after her water broke prematurely. So I asked Jonathan Mitchell what he thought about that. But I do have a hard time understanding why SB8 would have stopped medically necessary abortions because the statute specifically allows them at any point in the pregnancy, and it specifically exempts those abortions from any type of liability, civil or criminal. Does it concern you that this happens? It concerns me, yeah, because the statute was never intended to restrict access to medically

necessary abortions, and the statute specifically says only the purely elective abortions are unlawful under SB8. But as we've heard, that is not what's happening. Many doctors have told both Selena and me that they don't feel like they're able to terminate pregnancies, even when there's an emergency and the standard of care established by the medical community would suggest that they should. Selena, what else have you been hearing from doctors? Well, they really feel like they're in an impossible situation, especially when it comes to complications. So you have the threat of prosecution by the state if you provide an abortion that someone deems doesn't fall into the medical exception. You also have the threat of malpractice suits if you deny an abortion and someone gets really sick or dies as a result.

Sarah, how has the overturning of Roe reshaped political conversations about abortion? Well, we've now had two elections in 2022 and 23 where voters have had a chance to weigh in since the Dobbs decision. Several states had ballot initiatives that spoke to questions related to abortion rights. And in every case where the question was put directly to voters, voters supported abortion rights in one way or another. You know, this isn't hypothetical or just political anymore. It's often very personal for people affected by these laws. Take Kentucky, for example. This is a state that bans abortion without exceptions for rape or incest. In the governor's race this year, the Democratic incumbent Andy Beshear was facing a challenge from Republican Attorney General

Daniel Cameron. Beshear ran an ad challenge from Republican Attorney General Daniel Cameron. Beshear ran an ad that focused on a young woman who said that she had been assaulted by a family member when she was just 12. Anyone who believes there should be no exceptions for rape and incest could never understand what it's like to stand in my shoes. This is to you, Daniel Cameron. To tell a 12-year-old girl she must have the baby of her stepfather who raped her is unthinkable. And Bashir was re-elected in a pretty red state. And I heard similar concerns, you know, in Ohio, where I spent some time reporting on a ballot initiative to protect abortion rights this year. Many people there remember the story that made national news last year of a 10-year-old Ohio girl who became pregnant as a result of rape.

And because Ohio's anti-abortion law had just taken effect, she had to travel to Indiana for an abortion. You know, those kinds of cases are on voters' minds. And voters in Ohio approved that measure to protect abortion rights in their state constitution. So in light of these victories, activists in several more states are pushing for abortion rights ballot measures. Some of those are key battleground states like Arizona and Florida. And we're also seeing some efforts by anti-abortion groups to try to keep those off the ballot. So, Sarah, we have at this point been talking about elections in the past, but we are headed into a monumental election year in 2024. The primary is already underway. What are you seeing and hearing?

You know, Republicans are looking at these election results and seeing voters appear to push back against abortion restrictions, often even in pretty red states. So this is a challenge for particularly for Republican presidential hopefuls who are trying to navigate that. They're trying to appeal to a base that's strongly anti-abortion. But also they have to be mindful of what they're saying and not turn off general election voters. So we've seen them try to sort of walk that line. Several of them have told personal stories about experiences in their families with miscarriages or difficulty conceiving. What that seems like is an effort by the candidates to humanize themselves and seem more relatable

on this issue. All of these candidates generally support the overturning of Roe v. Wade. The question is just how restrictive should laws be and should they support a national abortion ban if, hypothetically, and it's very hypothetical, Republicans would ever get enough votes in Congress to do that. Selena, the other big thing that we're watching next year on this front is that the Supreme Court has agreed to take up another case about abortion, this one involving the abortion pill. Right. So this is a case brought by doctors who oppose abortion rights, who say the FDA didn't use the right procedures when it loosened access to a drug called mifepristone. And the shakiest part of this case is whether they have the right to sue. But even so, many academics believe that this impact of this decision could be really, really, really big. And that's because most of the abortions in the U.S. happen as medication abortions, which involve mifepristone and another drug called misoprostol.

So a decision that limits access to mifepristone could have national impact, including for people living in New York and California and Colorado and other states that have positioned themselves as bastions of reproductive rights. We haven't heard oral arguments. We don't know what the justices are thinking. But this is the same court that overturned Roe v. Wade, and the decision could come just months before the election. So it's going to be a huge story in the coming year. NPR's Selena Simmons-Duffin and Sarah McCammon, thanks to both of you. You're welcome. Thank you. It's Consider This from NPR. I'm Juana Summers.