Can the US handle the unintended consequences of banning abortion?

We are beginning to recover from the shock of the Supreme Court’s decision last week to eradicate all federal constitutional protections for abortion rights. After all, the plan to overturn Roe v. Wade was long discussed as the major motivation for conservatives to wrest control of the court from Democrats and moderate Republicans.  

Now we need to be prepared for what’s to result as unintended consequences of criminalizing abortion.

The direct harms that result when abortion is banned are well known. Countries worldwide that have banned abortion have seen significant harm to women’s health, including death. Women have abortions later in pregnancy, self-manage abortion in secret, or are forced to carry a pregnancy to term. The negative impacts fall disproportionately on women of color who face structural barriers to health care and a greater risk of being prosecuted and incarcerated. Freestanding clinics are shunned or shuttered, dramatically reducing access to reproductive health care, including contraceptives, tools for prevention of sexually transmitted infections and more.

Furthermore, banning abortion carries with it a host of unintended risks and consequences for anyone who becomes pregnant, whether they seek an abortion or not. Activists in countries where abortion is banned are painfully aware of this reality. The unnecessary death of Savita Halappanavar in Ireland in 2012 is one heartbreaking example.

Halappanavar had been 17 weeks into a wanted pregnancy when complications made it clear she would miscarry. Because Irish law banned abortion, while her doctors detected a fetal heartbeat, they delayed proper treatment. Halappanavar’s family’s pleas for a termination were ignored as she deteriorated and ultimately died of sepsis. Public shock at her death was instrumental in removing the abortion ban from Ireland’s constitution in 2018. And yet, sadly, this same situation has been repeated with reports of two pregnant women, Agnieszka T and Izabela, dying from failure to treat miscarriages in Poland this past year.

The laws on abortion in Ireland and Poland each contained a “life-saving” exception, as will many abortion bans in the U.S.  Still these laws fail to protect women’s lives when most needed. Medical professionals know that there is never a clear line to distinguish when treatment is necessary to save someone’s life versus “merely” to preserve their health. And when the threat of criminal prosecution hangs over a physician’s medical judgment, the results can be deadly for women. 

With maternal mortality rates in the U.S. already high, and horrifyingly so for Black women, such tragic deaths are already happening in the nation. More are likely to follow now. Several states with some of the highest maternal mortality rates — Louisiana, Alabama, Missouri and Arkansas — are also those that will ban abortion, throwing fuel on the fire.

Decades ago, I represented a woman with a life-threatening heart condition after her doctors at the Louisiana State University Medical Center had refused to provide her with a life-saving abortion, thankfully the National Abortion Federation raised funds for a private ambulance to transport her to a neighboring state. An LSUMC committee had determined that the patient did not have a greater than 50 percent chance of dying, therefore providing an abortion would violate the state’s ban on public facilities providing abortions. These laws are on a collision course with medical ethics.

Abortion bans cast a shadow over a range of other maternal health care as well. During Ireland’s dark decades of outlawing abortion, prenatal diagnostic testing was “patchy” and generally seen as a waste of resources because the option to terminate was not available. Stories of women with fetal anomalies traveling to England for abortions and having to clandestinely transport fetal remains back to Ireland for burial or genetic testing were not uncommon. How abortion bans governed in vitro fertilization, including the disposal of unused embryos, was not formally addressed and ultimately ended up in the High Court as part of a divorce case nearly two decades later. The fact that few physicians were trained to do surgical removal of tissue from the uterus meant that miscarriage management generally just involved “letting nature take its course.”

There is no reason to believe that women in the U.S. will be spared this litany of horrors. Moreover, our racist criminal justice system will exacerbate the harm to pregnant women of color who come under the spotlight for miscarrying or seeking abortion services.

Dobbs is an alarm bell and a call to action. While we have (for now) lost the federal right to abortion, there is much that can be done. Public support for abortion is high — over 60 percent of Americans believe in the Roe framework, although unfortunately only three of them sit on the Supreme Court. Let’s look to electoral solutions first. Voting season is in high gear now. NARAL Pro-Choice America provides a handy list of candidates for federal and state offices nationwide who are protecting our rights. Click, pick and support these upstanders with your time and dollars. As you do so, however, note that all the recommended candidates are Democrats. Abortion has become a partisan sport and we need to change this.

We do not need to turn every red state to blue, or even codify Roe v. Wade into state law. But we must stop giving Republicans hall passes on abortion and now demand that they join us to protect women and pregnant people from the deadly consequences, whether intended or not, of banning abortion. In some states, it will be a win if we can get bipartisan support for early abortion or exceptions in cases of rape or child sexual abuse, fetal anomaly or to preserve a person’s health and well-being. Ask every candidate whether they can agree at a minimum that nobody should spend a night in jail for trying to self-induce an abortion — #NotOneNight.    

The American Medical Association called the Dobbs decision an attack on best medical practices and acknowledges it as a violation of human rights when the government impedes access to abortion. They have committed to actively protecting physicians and opposing laws that criminalize abortion. It is a step in the right direction and a welcome show of leadership.

We need business, religious and other leaders and elected officials to now join us in calling for protecting the rights and well-being of anyone who is or ever could be pregnant. There’s a lot at stake. 

Julie F. Kay is a human rights lawyer who successfully argued against Ireland’s ban on abortion before the European Court of Human Rights and the co-author of “Controlling Women: What We Must Do Now to Save Reproductive Freedom.”

Editor’s note: This piece was updated on June 27 at 10:36 a.m. to note fundraising by the National Abortion Federation and a High Court case on in-vitro fertilization.