Restrictions have increased since the death of Roe v. Wade, the number of abortions too

Photo: Mario Tamme Getty Images via Agence France Presse A demonstration in Los Angeles in April 2023 organized by abortion activists

Stephanie Marin

Posted at 6:29 a.m. Updated at 12:29 p.m.

• United States

Two years have passed since the United States Supreme Court overturned Roe v. Wade of 1973, which provided constitutional protection for the right to abortion, returning to the American states full power to legislate on this subject.

Several of them have also seized this opportunity finally offered, increasing the number of restrictive laws and piling up obstacles for American women seeking to terminate their pregnancies.

But one analysis of the concrete effect of the efforts of the two camps – for or against abortion – paints a surprising landscape, and at odds with one another: if access to clinics has decreased “significantly”, the abortion pill, which can now be prescribed by telemedicine, has made abortions more accessible than ever for certain women — and even more numerous, report observers of the American political scene consulted by Le Devoir.

Access evaporates

On June 24, 2022, anti-abortion activists rejoiced loudly in front of the Supreme Court building in Washington, D.C. “We are the first post-Wade generation,” young people joyfully chanted.

Over the past two years, 14 states have completely banned abortion, with very narrow exceptions – some do not even allow it for incest or rape. The law that allows the termination of a pregnancy when the mother's life is in danger is so restricted that women have suffered serious complications and in some cases even died, points out law professor Carrie Baker of Smith College, at Massachusetts, particularly specializing in feminist studies and reproductive rights.

Seven other states have significantly reduced the period within which abortion is permitted (prohibited after 6 or 12 weeks of pregnancy). Such limits, in effect in 21 states, would have been illegal when Roe v. Wade was in effect.

“It has become significantly more restrictive” for access to abortion, but also for urgent pregnancy care, says Mary Ziegler, professor at the Faculty of Law at the University of California in Davis, specializing in reproductive rights and American conservatism.

Indeed, after June 2022, abortion clinics in the United States have dropped like flies.

However, the number of abortions in the country increased in 2023, reaching its highest level in more than 10 years. In short, they have been on the rise since the invalidation of Roe v. Wade, surpassing one million last year, reports the Guttmacher research institute, specializing in the advancement of reproductive health and positioned in favor of access to abortion.

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Indeed, women who wanted an abortion continued to travel — like never before — to obtain the procedure in a state where it is permitted: they were 1 in 10 at the 'have done in 2020, but now, they are 1 in 5.

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To block this flow of patients, states are criminalizing the doctors who provide them, the women who cross borders to obtain an abortion, and even allowing citizens to sue those who “help” them for damages – observers have denounced that this could even make an Uber driver liable for taking a woman to a clinic liable for prosecution. In fact, last year, a Texan, Marcus Silva, sued three friends of his ex-wife for $1 million each, accusing them of helping her obtain the abortion pill.

Even if the validity of some of these new legislative measures is doubtful, “these are tactics intended to scare”, and therefore to discourage anyone from helping a woman, judge Kelly Gordon, professor assistant professor of political science at McGill University, with a keen interest in conservative political movements and reproductive justice.

The abortion pill

The other reason which explains this increase in the number of abortions is the abortion pill, which can be prescribed since 2021 by telemedicine by a doctor from a state where it is legal, and sent by mail to the patient.

It is now used for nearly two-thirds of abortions in the United States, rising to 63% in 2023, a notable increase from 53% in 2020.

“In some ways, it's increasing access”, argues Professor Baker.

Which enraged opponents of abortion, who made this pill their new target.

To put a stop to its growing popularity, states have chosen to make its prescription by telemedicine illegal and others have tried to ban its sending by mail — without success, after the intervention of the American Department of Justice, who had to clarify the situation.

The counterattack

To protect their medical personnel, states like Illinois responded by adopting shield laws (Shield Laws) to protect them from criminal prosecution by the states where abortion is illegal.

Faced with this sea of ​​restrictions created since June 2022, seven states, such as Minnesota and Oregon, have rushed to extend the protection given to the right to abortion. Others have also adopted legislative measures to protect access to contraception, also in the sights of the most conservative.

Three states (California, Connecticut, and Washington) have even implemented measures banning geofencing near abortion clinics because activists can use the technology to target patients.

Abortion in the courts

The battle also took place on another front: that of the courts.

There are “tons of legal cases” in lower courts, at the state level, challenging laws restricting or providing more access to abortion. It becomes very difficult to know what is legal and what is not, which “creates anxiety and fear, among patients and doctors alike,” believes Ms. Baker, who adds: “It’s part of the strategy. »

A group of doctors has also decided to attack the root of this “evil” by challenging in court – and all the way to the Supreme Court – the authorization given to the abortion pill (mifepristone) by the FDA (Food and Drug Administration). The judgment rendered last week refused to revoke it, but “on a technical point, and not on the merits of the case”, specifies Professor Baker.

A cold shower for anti-abortion activists, who have no intention of giving up: “They will try again,” she says, convinced.