What the current landscape of abortion rights looks like going into 2024
JUANA SUMMERS, HOST:
When it comes to reproductive rights, 2023 is ending in much the same way it began - with confusion, lawsuits and the stories of women in the midst of health crises unable to access abortion care because of a host of restrictive abortion laws across the country. The most recent example of this is Kate Cox, a 31-year-old mother of two in Texas. That state has some of the most restrictive abortion laws in the country.
ARI SHAPIRO, HOST:
At around 20 weeks, Cox learned the fetus she was carrying had trisomy 18, a condition where the fetus often dies before birth or just after. Cox was having complications with the pregnancy, and continuing to carry the fetus could jeopardize her future fertility. Along with the Center for Reproductive Rights, Cox petitioned a Texas court for a medical exception for an abortion. The request was granted but later overturned when the state's attorney general, Ken Paxton, appealed the ruling to the state Supreme Court.
SUMMERS: With time running out, Cox left Texas to seek an abortion in another state. While this past year saw a number of states move to protect abortion rights, Cox's story is far from unique. We're going to talk through the state of reproductive rights in this country with NPR national political correspondent Sarah McCammon and NPR health policy reporter Selena Simmons-Duffin. 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?
SARAH MCCAMMON, BYLINE: Well, you know, this was the first full year without Roe v. Wade after the Dobbs decision was issued in June of 2022. And since then, we've seen continued fights in state legislatures, in courtrooms and at the ballot box over abortion rights and abortion policy. So currently, according to the Guttmacher Institute, which supports abortion rights, 14 states have total or near-total abortion bans. Seven more prohibit abortions 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.
SUMMERS: 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.
SELENA SIMMONS-DUFFIN, BYLINE: Yeah, it's a really surprising finding. There are some theories as to why. So 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. One study found that birth rates increased in states with abortion bans since these new laws took effect.
SUMMERS: Selena, remind us who's being impacted the most by all this.
SIMMONS-DUFFIN: 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 Casiano last spring. She didn't have the money to leave the state of Texas when she was pregnant with a fetus that had anencephaly. That's a condition where the brain and skull do not fully form. It's always fatal. She had to carry that pregnancy to term and give birth, and her baby died soon after that. 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.
SUMMERS: Sarah, to you, what has the response to these stories been like?
MCCAMMON: 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 an 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 SB 8, 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 Anna 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, the architect of this law, what he thought about that.
JONATHAN MITCHELL: I do have a hard time understanding why SB 8 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.
MCCAMMON: Does it concern you that this happens?
MITCHELL: It concerns me, yeah, because the statute was never intended to restrict access to medically necessary abortions. Only the purely elective abortions are unlawful under SB 8.
MCCAMMON: 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. They're worried about prosecution and other repercussions.
SUMMERS: Selena, what else have you been hearing from doctors?
SIMMONS-DUFFIN: 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.
SUMMERS: Sarah, how has the overturning of Roe reshaped political conversations about abortion?
MCCAMMON: 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.
SUMMERS: 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?
MCCAMMON: 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?
SUMMERS: 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.
SIMMONS-DUFFIN: 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.
SUMMERS: NPR's Selena Simmons-Duffin and Sarah McCammon. Thanks to both of you.
SIMMONS-DUFFIN: You're welcome.
MCCAMMON: Thank you. Transcript provided by NPR, Copyright NPR.
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