The blockbuster clash over Roe v. Wade now in front of the Supreme Court comes after a successful, decades-long guerrilla warfare campaign by the anti-abortion movement to attack access to the procedure around the edges.
Since the 1973 decision that enshrined a constitutional right to an abortion, activists and their partners in statehouses across the country have enacted more than 1,300 laws that have made the procedure more difficult to obtain.
Five states have only one clinic within their borders, and in large swaths of the country, abortion-seekers must travel for miles to obtain the procedure. States also impose limits, like waiting periods, parental consent requirements, advice mandates and restrictions on the specific types of procedures offered.
About 580 of such restrictions have been enacted just in the last decade, according to the reproductive rights think tank Guttmacher Institute. These restrictions compound upon each other, and particularly in states in the South and Midwest, abortion patients face not one or two, but several separate obstacles to obtaining the procedure.
For instance, in Kansas, a patient must wait 24 hours after her initial appointment to get an abortion; she must receive information about the procedure that is medically inaccurate and misleading; if she is a minor, she must get consent from both her parents; and she cannot use private insurance or – in most cases – public funding to pay for the procedure.
“You’re told that you can’t actually act on your decision until you jump through all the hoops that the state where you live has put out in front of you,” said Elisabeth Smith, the director of state policy and advocacy at the Center for Reproductive Rights. “That is all that is all meant to make the person seeking abortion care feel the stigma that anti-abortion folks believe it is true.”
This incremental approach to limiting access is, all at once, a strategy of policy, politics and law. By focusing on laws that chip away at the availability of the procedure, anti-abortion activists have secured key court decisions upholding those laws that have helped inch the Supreme Court closer to rethinking Roe, while keeping the issue in the national conversation.
“The way to deal with Roe v. Wade was to understand that, if we were going to change it, we had to – in the interim – operate under it, but challenge it, or at least save lives in the meantime, with provisions that would limit abortion,” James Bopp, the longtime general counsel of the National Right to Life Committee, told CNN.
Sometimes states passed laws in reaction to court decisions that opened the door to more restrictions, according to Katie Glenn, the government affairs counsel for the anti-abortion group Americans United for Life.
“Or, it’s pushing the boundaries,” Glenn told CNN. “It’s like: here’s the policy we want in our state, let’s go ahead and pass it. Let’s see what we can do in the court.”
In the meantime, abortion remains extremely difficult to access for some women, regardless of whether the Supreme Court upholds, reverses or waters down Roe in the case, concerning Mississippi’s 15-week ban, being heard in December.
Targeting clinics with regulations that make them tough to keep open
Abortion providers in nearly two-dozen states, per Guttmacher, face licensing mandates and other requirements that set them apart from facilities that offer comparable medical procedures.
Abortion rights advocates blame these and other restrictions for how number of clinics in certain states continues to shrink.
Some states have mandates around hallway or room size, or a clinic’s distance to a hospital; a dozen states require that clinics have a special relationship with a local hospital, according to the think tank. Such requirements make it more expensive to operate clinics, particularly when their facilities don’t already meet the mandates, and more difficult to staff with physicians who have the required licenses.
Texas saw the number of clinics in its state cut in half over the last decade, while a clinic regulation law was being litigated. Louisiana went from having 11 clinics several decades ago to having seven in 2011, and now, just three.
These numbers would be even more dire had the Supreme Court not ruled in favor of providers that challenged certain clinic regulation laws – known as Targeted Regulation of Abortion Providers, or TRAP, laws – passed in those states in recent years, which would have left Texas, the country’s second-most populous state, with fewer than 10 providers. All but one clinic in Louisiana would have closed.
Glenn, whose group supported that wave of bills, denied that the goal was to close clinics, and said they were passed “for safety reasons” for the patients’ health.
Regardless, as clinics have shuttered, available care has been condensed to urban areas.
The distances can be daunting for women who can’t easily afford the travel expenses, child care and the time off work required to make the trip. According to one 2019 study, nearly “one-fifth of U.S. abortion patients traveled more than 50 miles one-way and the most common reason reported for clinic choice was that it was the closest.”
“For folks that are in rural communities, access is just really difficult because of the travel,” said Tamya Cox-Touré, co-chair of the Oklahoma Call for Reproductive Justice, which helps women navigate seeking the procedure.
Additional hurdles once patients make it to their provider
Getting to the clinic is often only the first step.
About half of the states have in effect waiting periods – ranging from 18 to 72 hours – which further compound the time and travel cost individuals must expend to obtain the procedure.
South Dakota’s is the most extreme, as it excludes weekends and holidays from the waiting period count, meaning that if a woman shows up on a Friday to get the procedure, she will not be able to get it until the following Wednesday.
These requirements – and particularly ones in states that require women see the same physicians for their first and second visits – complicate operations for clinics too, by hamstringing staff time and scheduling.
Minors face an additional hurdle in the 38 states that require parental involvement in the decision, either with a notice or a consent requirement; in three states, both parents must give their consent, according to Guttmacher.
While the vast majority of those states offer a judicial bypass for minors who do not want their parents’ involvement, that court process can be time-consuming, and in some states, a judge’s permission is only granted under certain circumstances.
The hurdles are not just ones of cost and time, but of emotion, as several states require that providers tell abortion-seekers certain things about the procedure that aren’t necessarily true or accurate.
In five states, patients are told falsely that the procedure increases the risk of breast cancer, while eight states require that recipients of a medication abortion be told inaccurately that the procedure can be reversed midway through.
“It’s a testament to how much people want and need abortion that they still go through with it, after everything that the state is requiring them to hear,” said David Cohen, a professor at the Drexel Kline School of Law and co-author of the book “Obstacle Course: The Everyday Struggle to Get an Abortion in America.”
Restrictions on the types of procedures
Since Roe, federal courts have been mostly skeptical of laws that ban abortion before viability. But other restrictions that target abortion based on the type of procedure offered have been broadly successful in limiting women’s options based on where they are in their pregnancies.
Several states have sought to ban an abortion procedure known as D&E, or “dilation and evacuation,” the method most commonly used for women in their second trimester. Texas’ ban was recently upheld by a federal appeals court.
Medication abortion – in which patients terminate their pregnancies by use of pills – have also become a target of legislators in places like Texas, which recently enacted a law threatening felony punishment for physicians who provide medication abortion pills without meeting the state’s informed consent requirements. Nineteen states effectively outlaw the use of telemedicine in administration of medication abortion.
The laws, outside their practical effects, also carry a political impact.
“The procedure bans are a way that anti-abortion folks can try to define abortion care and define this medical procedure … in a way that makes people oppose to it,” Smith, of the Center for Reproductive Rights said, pointing to how anti-abortion activists have rebranded medication abortion as “chemical abortion.”
As anti-abortion activists see it, these types of laws let them highlight the “the extremity of the pro-choice position, and possibly of Roe v. Wade itself,” Bopp told CNN.
Then there is the question of how abortion patients are going to pay for the procedure. Given that seekers of the procedure tend to be lower-income or poor, they are hit especially hard by policies of the federal government and nearly three-dozen states that limit the use of Medicaid to pay for abortion.
Glenn, of Americans United for Life, pointed to polls supporting limits on public abortion funding, and said that “nobody should feel like they should have an abortion because of a financial decision related to government benefits.”
About a dozen states put limits on the coverage of abortion by private insurance plans.
The time women spend saving money has knock-on effects. It might take so long that they get too far in their pregnancies to receive less invasive types of the procedure, like medication abortions. In some states the gestational limit might pass.
“When a person is living in a state like Texas where there are a lot of abortion bans and restrictions that work together, prohibiting coverage is one thing that can push abortion, out of reach for someone,” Smith said. “Abortion is time-sensitive medical care, so if you do not have the funds to pay for it out of pocket. You are having to figure out how to pay for it.”