Beyond Roe: Abortion Rights, Equity, and the Path Forward

Anita L. Allen, PhD | Image Credit: law.upenn.edu

“A whopping 60 countries have liberalized their abortion laws over the last 30 years, whereas the United States is one of only 4 countries that have taken a giant step backward becoming more restrictive,” Anita L. Allen, PhD, of University of Pennsylvania, said during the President's Guest Plenary Lecture, “From Privacy to Prohibition: Giant Steps in the Wrong Direction” at the American Society for Reproductive Medicine (ASRM) 2023 Scientific Congress & Expo in New Orleans, Louisiana.

Allen is a distinguished scholar, holding a law degree from Harvard and a PhD in philosophy from the University of Michigan, and is an esteemed member of the National Academy of Medicine. She is an expert in privacy, data protection, law, ethics, bioethics, and women's rights with research spanning various interdisciplinary centers, making significant contributions to fields such as health economics, ethics, and technology.

“The United States is now in the same league as countries that we don't ordinarily regard as our role models when it comes to health policy,” she continued.

Emphasizing the weight of constitutional rights, Allen stated that under the 1973 Roe v Wade Supreme Court decision, a pregnant person’s choice of medically safe abortion was held to be protected by the 14th Amendment of the Constitution and the Bill of Rights as a fundamental right: “This meant that abortion had to be a matter of a woman's own choice—no justification or permission required of adults seeking abortion.”

Even under Roe, however, there were state and federal restrictions that limited multiple aspects of abortion. Also, for many with low-income or government health insurance, abortion was largely inaccessible even prior to the 2022 decision to overturn Roe.

The loss of abortion rights disproportionately affects marginalized communities, especially Black and Hispanic women, highlighting an issue of equity.

“Abortion has remained controversial throughout the entire time that we've had conversations about abortion law, but the Roe compromise was that nobody was required to have an abortion, and people whose ethical and moral judgment told them to have an abortion or not could make that choice,” Allen explained.

The Impact of Abortion Prohibition

Restricting access to medically safe abortion affects all people who can become pregnant, but the disparities seen across health care, particularly as it relates to access and effective use of birth control, especially impact people of color. In the US, Black women undergo abortions almost 5 times as much as White women, according to Susan Cohen of the Guttmacher Institute.¹

Because of a lack of access to effective birth control, Black women experience unintended pregnancy 3 times the rate of White women, and for Hispanic women, it's twice the rate. The research also shows Black women want the same number of children as White women but are more likely to terminate an unintended pregnancy to avoid an unwanted birth.¹

“An attack on abortion rights is also an attack on particular women,” Allen stated.

The burdens of pregnancy-related illness and death² as well as infant mortality³ fall heavily on the Black community, she explained.

Not only has the maternal mortality rate been rising in the US, but according to a recent CDC study, about 1 in 5 women reported mistreatment while receiving maternity care.²

"The rate was the highest amongst women of color, highest amongst Black women, followed by Hispanic women, followed by women who identify with multiple races," Veronica Gillispie-Bell, MD, MAS, head of Women's Services at Ochsner Medical Center, Kenner, and the director of Quality for Women's Services for Ochsner Health, said in an interview with The American Journal of Managed Care^Ⓡ. ²

"There was also a disparity in terms of public insurance, or not having insurance, that those individuals also felt mistreatment or reported mistreatment at a higher level than their counterparts," she continued. "So overwhelmingly, the respondents did show that we need to do better in how we respect our mothers when they are in their maternity time."²

In another interview, Takiyah Durham, MBA, director of First Steps and Beyond discussed how Enterprise Equitable Health Institute's program aims to mitigate the infant mortality rates, especially among Black babies.³

"We know that the United States has one of the highest rates when it comes to maternal mortality and infant mortality," Durham explained. "Despite having the most resources via one of the most technologically advanced nations, our infant mortality rates continue to rise."³

In the same interview, senior vice president and chief diversity officer of Highmark Health/AHN, Margaret Larkins-Pettigrew, MD, professor and academic chair of obstetrics and gynecology at Drexel University College of Medicine, explained that maternity care in the US is not where it needs to be. ³

"That number should be zero," she said. "As it turns to maternal health and neonatal health or death of babies, that number should be zero in our country, because most of the deaths are because of preventable causes."³

Limiting and restricting access to medically safe abortion places additional burdens on patient populations who are already facing an excess of barriers to health care.

“The issue around Dobbs is also an issue around equity for black women,” Allen said.

The Striking of Roe

Allen dissected the various arguments presented in the court decision. One argument posited that Roe v Wade was a mistaken precedent and could be overruled. Another claimed that abortion law under Roe was unworkable due to constant challenges and restrictions by antiabortion activists.

The court's decision also questioned the textual grounding of abortion rights in the Constitution and argued that it wasn't a fundamental right. A fundamental right has to either be part of the nation’s history and tradition or be implicit in the concept of ordered liberty.

While it’s been argued that abortion is part of the nation’s tradition, Allen focused on the idea of liberty and posed a question: Should a woman have a right to make decisions about whether to bear children, about her timing to bear children?

“I think we absolutely should,” she said. “In fact, my view is that women cannot participate as equal citizens unless they have substantial powers over their reproductive capacity.”

After a round of applause from the audience, Allen countered the court’s argument further, as she believes abortion is a fundamental right. Women’s participation in society under conditions of equal citizenship is impaired by the abortion prohibition movement, posing a real problem, she said.

Another argument for striking down Roe was that moral decisions like abortion should be in the hands of the people and state representatives, not federal courts. However, Allen vehemently disagreed, pointing out the confusing legal landscape of being at the mercy of 50 different states. 

“I was at dinner last night at a table with women who work in fertility medicine from different states—Missouri, Maryland, etc—and everybody's confused about what the law is and about the direction they should be taking in their work because of it,” she said.

In states like Louisiana, not only is abortion mostly prohibited, making it illegal, but if a provider performs one they can face a fine of up to $200,000 and 20 years in prison. So, while women are losing access to medically safe abortions, providers are also at risk.

“I think that continued access to abortion, which many women don’t have today, is so vital because this is how we value women as persons, as moral agents, as parents, and as citizens,” Allen said. “This is how we value health and life. This is how we value fairness and equity.”

With the Dobbs decision, the Supreme Court demonstrated a disregard for women and pregnant people while showing deference to how a few elements of society view the embryo and the fetus, according to Allen.

“The embryo and the fetus are being valued as human beings, as persons, at the expense of women being valued as persons, as moral agents, as parents, and citizens,” she said. “We can honor life without punishing women and their health care providers.”

Threats to Abortion Access

According to Allen, the restrictions have just begun. She also expressed concerns about the broader implications, suggesting that other privacy rights, such as contraception, interracial marriage, and LGBTQ+ rights, might also be at risk if the current legal trend continues.

Currently, she said, there are efforts to:

• Ban abortion in more states
• Restrict abortion to a few weeks after a missed period
• “Look for the quote-unquote fetal heartbeat”
• Criminalize, prosecute, and punish providers, parents, patients, and facilitators
• Overregulate and oversurveil clinics
• Erect barriers to travel for abortion
• Punish those who miscarry
• Limit time off from work to obtain an abortion
• Limit insurance coverage for abortion
• Underprosecute violent acts toward medical providers

There are also efforts attempting to get Congress to pass a statute defining embryos and fetuses as human beings, which would create a federal law that could be used to abolish abortion access.

Even beyond this, Allen said, medication abortion is at risk. She described a case that came out of Texas recently and made its way to the Court of Appeals called Alliance for Hippocratic Medicine v FDA.

Mifepristone, a pill medication that induces abortion, is the most common form of abortion and was approved by the FDA in 2000 for medical termination of pregnancy; it is now indicated for up to 10 weeks gestation. A group of providers in Texas decided to challenge this approval.⁴

Their goal is to get the drug off the US market or severely limit its use, making it necessary for women to travel to a doctor’s office to administer it, and prohibiting telemedicine and mail orders. In Texas, the decision was stayed and the pill was banned.

Now, Allen explained, the Fifth Circuit or the Court of Appeals is trying to uphold the restriction, leaving it up to the Supreme Court to decide whether or not a group of providers can nationally block women’s access to medication abortion.

While she isn’t convinced the Supreme Court will honor this effort, she expressed her fears. For providers especially, there has been an increase in the number of legal cases related to violence against health care providers.

“People are obstructing, violently blocking, access to clinics. They're destroying clinic property. These things are going on today,” she said. “People who are providing abortions that are legal are being intimidated in efforts to further reduce the women's access to abortion.”

Defending Reproductive Rights Together

In the aftermath of the pivotal Dobbs v Jackson Women’s Health Organization ruling, Allen’s presentation not only shed light on the profound challenges to abortion rights but also outlined a roadmap for collective action and social transformation.

1. Broadening the conversation: She emphasized the urgent need to shift the national conversation surrounding reproductive rights. By focusing on women's health, provider autonomy, and the well-being of families, society can address the complex web of concerns intertwined with abortion. It is crucial to recognize that ethical and moral perspectives encompass not only fetal rights but also the dignity, autonomy, and well-being of women.

2. Defending constitutional privacy: The constitutional theory of privacy, as exemplified by Roe v Wade, remains a cornerstone of reproductive rights. Allen urged citizens not to be swayed by political narratives but to critically evaluate legal decisions. By voting for leaders who prioritize these fundamental rights and supporting organizations championing reproductive health, individuals can fortify the defense of constitutional privacy.

3. Collaborative advocacy: Allen’s vision underscored the importance of collaborative advocacy, by supporting pro–abortion rights nongovernmental organizations (NGOs), family welfare organizations, and Planned Parenthood. These entities play a pivotal role in safeguarding access to abortion, family planning, fertility treatments, and overall health care. By pooling resources and hearts, society can resist what she called the regressive tide, ensuring vital rights are upheld.

4. The road ahead: The path forward is challenging, marked by complexity and resistance. Reversing the repercussions of Dobbs may take years, demanding sustained dedication and perseverance. However, Allen remained hopeful for a future where the collective will of the people, channeled through informed voting, unyielding support for NGOs, and steadfast defense of constitutional principles, can recalibrate the political landscape. This recalibration, she believes, will pave the way back to a more just and equitable society, where reproductive rights are not only protected but also celebrated as fundamental human rights.

In the face of adversity, Allen issued a call to action, urging society to stand united, defend individual freedoms, and uphold the dignity of all. As communities rally together, they can chart a course toward a future where reproductive rights are not just preserved but strengthened, ensuring a legacy of autonomy, equality, and justice for generations to come.

References

1. Cohen SA. Abortion and women of color: the bigger picture. Guttmacher Policy Review. 2008;11(3). https://www.guttmacher.org/gpr/2008/08/abortion-and-women-color-bigger-picture

2. Grossi G. Dr Veronica Gillispie-Bell addresses racial disparities in maternity care. AJMC. August 28, 2023. Accessed October 18, 2023. https://www.ajmc.com/view/dr-veronica-gillispie-bell-racial-disparities-maternity-care

3. Grossi G. First Steps and Beyond aims to reduce Black infant mortality. AJMC. October 13, 2023. Accessed October 18, 2023. https://www.ajmc.com/view/first-steps-and-beyond-aims-to-reduce-black-infant-mortality

4. Questions and answers on mifepristone for medical termination of pregnancy through ten weeks gestation. FDA. Accessed October 18, 2023. https://www.fda.gov/advisory-committees/advisory-committee-calendar/vaccines-and-related-biological-products-