Just over a year ago, a leaked draft opinion revealed that the U.S. Supreme Court voted to strike down Roe v. Wade, according to POLITICO, who broke the news on May 2, 2022.
The draft opinion, written by Justice Samuel Alito, argued that Roe was “egregiously wrong from the start” and the reasoning behind the landmark decision was “exceptionally weak.”
“We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment,” Alito wrote. The initial draft opinion was stamped with a Feb. 10, 2022 circulation date.
Planned Parenthood v. Casey, the notable 1992 decision on abortion rights, upheld the ruling in Roe v. Wade and affirmed the right to a legal abortion.
On June 24, 2022 — one month after the document was leaked — the draft opinion became reality when the Supreme Court abolished the right to an abortion and left the decision up to individual states.
Since Roe was overturned, 14 states have enacted complete bans on abortion, one state (Georgia) has a six-week ban on abortion and four states have abortion bans from 15 to 20 weeks. Several judges across Indiana, Iowa, Montana, Ohio and Wyoming have blocked attempts at enacting abortion bans.
Across the rest of the U.S., abortion services remain legal, and in states like California, new legal protections have been put in place to protect all aspects of reproductive access, including patient data, access to abortion medication and protections for people traveling from out-of-state to seek services.
As more states threaten to restrict and ban abortion-related services and medications, California Governor Gavin Newsom and other Reproductive Freedom Alliance member states have made plans to stockpile another abortion medication, misoprostol, following a Texas federal judge’s attempt to rescind the U.S. Food and Drug Administration’s (FDA) approval of mifepristone, one of the drugs used in the process of ending a pregnancy.
“In a world where the FDA is forced to rescind approval of mifepristone, it means that the most commonly used protocol for medication abortion in the United States would no longer be available,” said Cat Duffy, a policy analyst for the National Health Law Program. “If we’re talking about the scenario where the FDA is forced to take mifepristone off the market, it would really, fundamentally impact access to abortion.”
Duffy highlighted data from the Guttmacher Institute which found that medication abortion accounted for 53% of all facility-based abortions in the U.S. in 2020. If the use of mifepristone is banned or restricted, patients would be forced to seek out procedural abortions at a clinic instead of getting access to treatment via telehealth services and mail delivery, Duffy explained. Some patients would also be forced to use misoprostol instead. Misoprostol can be taken 48 hours after mifepristone, as the second medicine in the two-pill process.
According to Planned Parenthood, the use of misoprostol alone is safe and has a complication rate of less than 1%. The effectiveness of misoprostol depends on how far along a person is in their pregnancy, how the medicine is taken and how many doses are taken. Planned Parenthood noted that misoprostol-only abortions work 85-95% of the time.
For now, access to mifepristone remains unchanged following the U.S. Supreme Court’s order on April 21 which upholds the FDA’s approval of the abortion medication, blocking lower courts from placing bans on the use of the FDA-approved medication. The 5th Circuit Court of Appeals has scheduled oral arguments in the case for May 17.
“The U.S. Supreme Court is right to take this action to protect access to medication abortion and put a hold on the extreme decisions of the Texas judge and the Fifth Circuit Court of Appeals,” said Newsom in a statement. “Mifepristone is safe, legal and has been FDA-approved for more than two decades. For now, the Court has followed science, data and the law rather than an extreme and out of touch political agenda. Medication abortion is available and accessible here in California and we will continue to fight to protect people’s freedom to choose.”
A 2023 report from the Guttmacher Institute addressed how the overturning of Roe exacerbated inequities in abortion access, especially when race and geography are considered. States in the South and Midwest have the largest concentration of Black people, and account for nearly all the states with near and total abortion bans.
“States in these regions are also more likely to lack geographic access to maternity care, have worse maternal and infant health outcomes and lack basic social family policies, such as paid family leave — making the cost of being denied abortion care very, very high,” the report noted.
Duffy said that if mifepristone is pulled from the market, California would definitely feel the impact of increased need for access from other states. California has no residency requirements, so any person who lives outside of the state can access abortion services in California.
“All of the protections that California has for abortion access don’t protect Californians in a world where the FDA approval of mifepristone is rescinded because that’s nationwide,” Duffy said.