With the states now able to regulate abortion access, several states — Alabama, Arkansas, Mississippi, Missouri, Oklahoma, South Dakota, Texas, West Virginia and Wisconsin — have prohibited abortion, and most of these states do not have exceptions for victims of rape and incest.
In others — Idaho, North Dakota, Wyoming and Tennessee — abortion bans are expected soon. Arizona is also poised to start enforcing a ban, one that would prohibit all abortions except in cases to save a woman’s life. Though the state’s attorney general has said the ban was now “back in effect,” his office must still seek to lift a court injunction to begin enforcing it.
Federal judges in Kentucky and Louisiana have temporarily blocked abortion bans from taking effect.
A ban on abortions after 18 weeks of pregnancy is now in effect in Utah after a judge’s temporary freeze on the law expired on Monday.
California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont and Washington, as well as the District of Columbia, have laws that preserve access to abortion, according to the Guttmacher Institute, a reproductive health research group that supports abortion rights.
Some states have also been positioning themselves as “refuges” for abortion rights, by offering support and legal aid to women who travel to their state for an abortion.
Gov. Gavin Newsom has said California would offer tax breaks to companies seeking to move from states where abortion may become illegal. In Oregon, the Legislature approved $15 million in March to help pay for abortion expenses for patients coming from outside the state.
In New York, Democratic lawmakers have been working on a package of bills that would strengthen the state’s already robust abortion access laws. Some of those efforts have been focused on shielding providers from liability for patients coming from states where abortion has been criminalized. Others seek to help patients who travel to New York for reproductive health care.
Thirteen states across the country have signaled their readiness to ban abortion by passing so-called trigger laws, which would ban most abortions almost immediately after the decision from the Supreme Court.
“Some states that are very strongly anti-abortion, having been frustrated that they couldn’t ban abortion because of Roe v. Wade, decided to pass laws that would be on the books and operative immediately in the future event that the court ever removed the protections of Roe,” said Donna Crane, an adjunct professor at San Jose State University with an expertise in women’s rights and reproductive rights.
The 13 states that have trigger laws all have Republican-controlled legislatures: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming.
A current Texas law bans abortion after six weeks of pregnancy, and other states like Georgia, Ohio and South Carolina have passed legislation with the intent of prohibiting abortion after six weeks. These bills use the six-week mark as the point when an ultrasound may be able to detect the pulsing of what will become the fetus’s heart.
However, at six weeks many women have no idea they are pregnant.
Doctors measure the beginning of a pregnancy as being the first day of a woman’s last period. Why? They are tracking the length of pregnancy using a nearly 200-year-old calculation called Naegele’s Rule, named after Franz Karl Naegele, the German obstetrician who is credited with creating it in the 1800s.
The rule is somewhat confusing because conception usually does not occur until around 14 days after the first day of a woman’s period, assuming she has a 28-day cycle (which many women do not for a variety of reasons). The reason doctors still use the last menstrual cycle as a benchmark is because it is difficult to know exactly when the sperm fertilized the egg.
So when doctors say a woman is six weeks pregnant, it typically means the embryo started developing about four weeks earlier.
The heart, which can be seen flickering on an ultrasound, is still maturing and cannot be heard until several weeks later.
Perhaps this is the simplest way to say it: Six weeks pregnant is two weeks after a woman misses her period.
Yes, birth control remains legal everywhere in the United States, though several states allow doctors and pharmacists to refuse to prescribe or dispense contraceptives, according to the Guttmacher Institute. The Supreme Court decision overturning Roe v. Wade does not indicate that the court would revisit past decisions about birth control.
However, some legal experts have raised concerns that justices could apply the argument for overturning Roe to limiting access to contraceptives. As a result, those who support birth control access worry that legislators could use a ban on abortion to make birth control less available.
“We’ve seen folks falsely equating emergency contraceptives and IUDs with abortion,” said Mara Gandal-Powers, director of birth control access and senior counsel at the National Women’s Law Center. “That’s certainly something I’m concerned about.”
One concern that has been raised is whether laws, like one in Oklahoma, that ban abortion from the moment of fertilization would also outlaw intrauterine devices, or IUDs, which are designed to prevent fertilization but also can stop a fertilized egg from implanting in the uterus. (The Oklahoma law specifies that it does not apply to contraception, including Plan B or morning-after pills.)
The two forms of emergency contraception pills, Plan B and Ella, work in a different way to prevent fertilization from occurring. Both delay or prevent ovulation and allow sperm in the reproductive tract to die out.
There are currently no abortion bans that attempt to prosecute women who cross state lines to seek an abortion.
However, states could try in the future, said David Cohen, a law professor at Drexel University. “There is no guarantee that an aggressive prosecutor might try to stretch the law as much as they can.”
In his concurring opinion, Justice Brett Kavanaugh suggested that women who travel to neighboring states to receive an abortion would be protected by the constitutional right to interstate travel.
People who assist a woman seeking an abortion in a neighboring state could also be at risk of prosecution.
“It’s hard to tell at this point, but I think it’s likely that [the prosecutors] will go after the people that help the woman get the abortion,” Mr. Cohen said. “The person who drives them, the doctor who sees them.”
Both Texas and Oklahoma recently passed abortion bans that allow private citizens to sue people who perform abortions or who otherwise help someone get one.
Many organizations are still encouraging patients who cannot seek an abortion in their home state to travel across state lines to receive care, including a handful of companies that have pledged to cover travel expenses for employees who need abortions.
“People should travel, people should get care wherever they can,” said Mr. Cohen. “But it’s not a simple answer.”
It is still legal in most states to receive abortion medication by mail, which has been allowed since December 2021, when the Food and Drug Administration lifted a restriction that required patients to obtain the pills from a certified provider.
There are 19 states that had already prohibited the use of telehealth to prescribe abortion medication by requiring prescribers to be present when the drugs are administered.
The Guttmacher Institute, a research organization that supports abortion rights, found that in 2020, medication abortion — a two-pill regimen of mifepristone and misoprostol — accounted for over half of all abortions.
The end of Roe v. Wade will make little immediate difference on access to these medications, though legal experts say that could change as more trigger laws are certified.
Some telemedicine companies are bracing for anti-abortion trigger laws to take effect, but vow to continue mailing medication in the interim.
Dr. Julie Amaon, medical director of Just The Pill, a company that delivers abortion medication to people in Wyoming, Montana, Colorado, and Minnesota, said they will continue to serve clients in all four states until Wyoming’s trigger law is certified. If that happens, their clients in Wyoming will need to travel to receive care.
“The way it will work is if your state of residence bans access to medication abortion, you can travel to another safe state to have a telehealth appointment,” Dr. Amaon said. “You would then get the medication by pick-up at our mobile clinic or if you are in a state without mobile clinics, you would wait 1-2 days to have the medication mailed to a pick-up location.”
Aid Access, a European service that has continued to send pills to women in the U.S. regardless of the laws in their state, is likely to be unaffected by the recent decision. Anti-abortion lawmakers are generally wary of punishing individuals seeking an abortion, said Mary Zeigler, a law professor at University of California Davis. They tend to focus on clinicians and prescribers who aid the patient seeking an abortion, but overseas providers operate in extralegal channels outside the reach of state lawmakers.
“There’s not going to be an easy enforcement mechanism there,” said Ms. Ziegler “But it’s worth emphasizing, whatever answers I’m giving for today, may not be true tomorrow, the bans are just the tip of the iceberg.”
Women’s health care providers say the ruling has raised questions about their ability to treat ectopic pregnancy, a life-threatening complication that occurs when a fertilized egg implants in the wrong place in a woman’s body instead of attaching to the lining of the uterus.
More than 90 percent of the time, in an ectopic pregnancy, the fertilized egg implants in one of a woman’s fallopian tubes, which connect the ovaries to the uterus. The fallopian tubes are thin and full of blood vessels. If they burst open, as can happen when a fertilized egg grows in the tube, that can cause major internal bleeding and put a woman’s life at risk.
Ectopic pregnancies are never viable, as a fertilized egg cannot survive outside of the uterus. In rare cases, the body will expel an ectopic pregnancy on its own. But for the vast majority of women, the only options are medication to remove the pregnancy or surgery.
The 13 states with abortion trigger laws that took effect after the Supreme Court’s decision, or soon will, allow exemptions if an abortion is needed to prevent a pregnant woman from dying. But the American College of Obstetricians and Gynecologists has warned that abortion bans — even those with an exception for ectopic pregnancies — can create confusion and impede a patient’s timely access to care.
That will depend on where you live, the type of insurance plan your employer uses and their stance on coverage.
Basically, if a company pays for its employees’ health care from its own coffers, workers, even those in states where abortion is illegal, may have broader access to benefits. But employers that buy insurance policies for workers could be further restricted.
Large employers are often self-insured, which means they collect a share of their workers’ premiums and pay for their health care (though an insurer or administrator usually processes claims). These plans generally follow federal rules under the Employee Retirement Income Security Act of 1974, known as ERISA, which provide broad flexibility in designing a health care plan.
Other employers buy insurance on behalf of their workers, and the insurer is responsible for costs. Health insurers are regulated by the states and must follow their rules — if abortion is banned there, you’re unlikely to receive any coverage, even if you travel out of state.
Many larger employers are providing travel benefits for workers who would need to cross state lines for abortion. This is often an extension of existing policies. Typically these plans have offered travel benefits for people seeking cancer treatments, transplants or other specialized therapies if they don’t have access to a provider in their state or have to travel a certain number of miles to reach one, benefits lawyers said.
But there are still concerns about employers’ criminal and civil liability, particularly in states with laws that would call for criminal prosecution of anyone in the state who “aids and abets” an abortion, even if it occurs in another state where abortion is legal.
Health plans governed by federal ERISA regulations may have additional protections against legal actions brought under state law, benefits experts said, as long as the services are legal in the state where they are provided. Benefits lawyers also point to Justice Brett Kavanaugh’s concurrence in Dobbs, in which he said states with abortion bans could not stop women from seeking the procedure elsewhere. But while ERISA regulations often supersede state laws that may apply to plans, that doesn’t extend to state criminal laws.
“This issue will likely be the subject of continuing litigation and debate,” according to the reproductive rights task force at Morgan Lewis, a law firm in Washington.
The health insurance marketplace created under the Affordable Care Act has restrictions that are similar to those on Medicaid. Plans offered within the marketplace are not required to cover abortion, and federal money — including premium subsidies in the form of tax credits — cannot be used to pay for them. Here, too, there are exceptions for rape, incest and life endangerment, but they are not universal.
There are 26 states that ban marketplace plan coverage of abortions, said Alina Salganicoff, director of women’s health policy at Kaiser. But a few states don’t make exceptions for rape or incest, and some states make no exceptions at all, she added.
In contrast, insurers in seven states are required to include abortion coverage in all plans sold on the marketplace, according to Kaiser, but no federal dollars are used.
For example, in states like New York, where abortion is legal under state law, policy holders with subsidized marketplace plans have $1 of their monthly premium held separately to be used for abortion and other services.
But if an individual with a marketplace plan lives in a state where abortion is banned, it’s likely their policy won’t provide coverage in their own state or across state lines.
Just like before the ruling, that largely depends on where you live.
Medicaid, a public health program largely for low-income households that is administered by the states, is financed by federal and state money. Even before the Dobbs decision, federal law — known as the Hyde Amendment — didn’t allow federal funds to pay for abortions, except in limited circumstances: if the pregnancy was the result of rape or incest or caused a life-endangering condition for the woman. States could choose to use their own money to pay for abortions beyond those situations, and 16 states had such policies last year, according to the Kaiser Family Foundation (though nine were ordered by courts to have them).
The vast majority of states don’t pay for anything beyond those limited circumstances — and South Dakota, in violation of federal law, covers abortions only in the case of life endangerment, according to a 2019 study by the Government Accountability Office.
Like South Dakota, a growing list of states that ban abortions — including Alabama, Arkansas, Louisiana and Missouri — make exceptions only when the woman’s life is endangered. That puts them in conflict with federal law that also requires abortion coverage in cases of rape or incest.
The Centers for Medicare & Medicaid Services said it would notify states when they were out of compliance with federal requirements, and added that the Department of Health and Human Services was taking steps to expand access to medication abortion in those limited circumstances. Details on how that will happen are still vague.
