The U.S. Supreme Court’s 2022 overturning of Roe v. Wade sparked dramatic shifts in the abortion landscape in the United States — but even more significant changes may lie ahead, legal scholar Mary Ziegler, JD, told listeners at Learn Serve Lead 2023: The AAMC Annual Meeting on Monday, Nov. 6.
Those changes cut to the core of the nature of democracy in America, said Ziegler, a professor of law at the University of California Davis and one of the world’s leading experts on reproductive rights.
“If you think about what comes next after Dobbs, it’s not just a struggle about how patients relate to their bodies and their health care. It’s also about how we relate to the body politic,” as courts and legislatures across the country grapple with the legal and political implications of the landmark decision, she said. “[This] will be in some ways a fight over what kind of democracy we have.”
The decision has also shifted how physicians practice medicine, she said. For years, physicians could afford to stay on the sidelines, but that is no longer true as they now sometimes find themselves “taking on the role of de facto lawyers” struggling to interpret abortion laws that could land them in jail for 10 years or more.
And that can’t help but impact how some patients view their providers. “[Patients] would rather be in a position where they can trust clinicians rather than worrying that they are collaborating with law enforcement officers,” Ziegler said in a discussion with session moderator and reproductive justice advocate Anitra Beasley, MD, MPH, associate professor at Baylor College of Medicine.
Meanwhile, some physicians are unwilling to work in states that ban abortion, shrinking access to basic care for patients in regions already struggling with doctor shortages. “This is likely to lead to even more care deserts in states that already have them,” she said. Often, those areas are ones that are likely to have prosecutors who are ambitious about prosecuting abortion -related cases, she added.
Looking ahead, Ziegler pointed to numerous potential other moves on the part of anti-abortion activists. Among them are the pursuit of a national abortion ban using the 1873 Comstock Act. The aim, she said, would be to have a Republican president move to enforce elements of the law that prohibit the mailing of any device or medication that could be used in abortions.
But doctors can play a key role in shaping what lies ahead for abortion rights in America, Ziegler said.
“It’s often physician-led ballot initiatives … that prevailed on the side of abortion rights,” she noted. And voters care about physicians’ voices. “Speaking out about how you feel about this as a physician is really important,” said Ziegler. “Physicians can put more of a thumb on the scale than any other constituency.”
In advance of Learn Serve Lead 2023, AAMCNews talked with Ziegler about the complicated past and uncertain future of abortion in America, including the Dobbs decision’s effect on patient care, how it could exacerbate health inequities, and whether it will impact other reproductive rights in the years ahead.
Dobbs placed control of abortion access in the hands of states. What impact has that had so far?
More than a dozen states have enacted criminal bans, and around a dozen more may still do so.
At the same time, progressive states are working to enact laws and constitutional provisions preserving the right to perform abortions. We’re also seeing progressive states working to protect their medical professionals from conservative states possibly pursuing criminal charges against them. These shield laws focus on steps like protecting providers from extradition to other states. There’s also a lot of litigation in state and federal courts around abortion restrictions and bans.
And we’ve seen a pretty solid consensus among voters for some form of abortion rights, which has manifested in ballot initiatives in progressive, conservative, and swing states. There also are countermeasures in some conservative states in an effort to make it harder for voters to weigh in directly on abortion-related issues. We recently saw one such effort fail in Ohio.
History shows that the abortion debate wasn’t always as partisan and polarized as it is today. How did it become so divisive?
To be clear, it’s sort of polarized now, and it isn’t. If you look at polling on abortion, even in conservative states, there’s a majority pro-choice view. But abortion has become increasingly caught up in partisan politics. The question is how that happened.
Before the 1960s, abortion was generally criminal except under very narrow circumstances. But physicians still performed abortions and relied partly on the dangers of pregnancy and exemptions to protect the life of the pregnant person. As obstetrical care improved, making that argument became harder, so in the 1960s physicians began urging legal reform — and there immediately was pushback from the anti-abortion side.
The polarization intensified in the late 1970s. Until then, you would often find pro-life and pro-choice politicians in both parties. That changed largely when Ronald Reagan saw a chance to win the votes of socially conservative Catholics and Protestants. At the same time, feminists were pushing the Democratic Party to take a stronger stand in favor of reproductive rights.
The parties began basing their positions on what social activists wanted rather than what voters or physicians wanted, and that dynamic continues today.
Do you see any potential for de-escalating the political conflict over abortion?
One of the most promising paths for de-escalating the conflict is direct democracy [in which individuals, rather than elected officials, vote on an issue] because if you give voters an up-and-down chance to say what they want, it’s clear that you would end up with abortion access in every state. But that’s not enough because not every state has direct democracy, and it’s not an option at the national level.
People telling stories about life under abortion bans can help. There are plenty of Americans who value life in the womb who may not translate that belief into wanting criminal penalties for abortion services. That number grows when you describe what actually happens under abortion bans. For example, the Texas litigation challenging that state’s ban brought out patients’ horror stories, which had an impact on people who heard them.
How are abortion bans and restrictions affecting the doctor-patient relationship?
Some patients now feel they can’t completely trust physicians to prioritize the best care for them. I don’t think patients necessarily blame physicians for what is going on around abortion, but they understandably feel that at times they can’t put the same level of trust in physicians because of the constraints doctors face.
Some states are trying to compromise that relationship even more. The Texas litigation, for example, involves patients who were denied care when their fetuses were missing parts of their brain or when they themselves had dangerous infections. Texas’ position is basically that it’s not the state’s fault — it’s that your doctor failed you. You can’t trust your doctor.
What do you see as physicians’ role in the current political and legal debates over abortion?
There’s lots of advocacy opportunities in court and in politics. In Ohio, the main force behind the ballot initiative was physicians who said we are not willing to practice medicine under this regime and we think voters support us.
On the litigation front, we’ve seen some physicians serving as witnesses and plaintiffs against certain abortion restrictions. Before Dobbs, it was often the same cast of physicians and physician groups pursuing this work, but now a much bigger cross section has become active.
Historically, there’s also been civil disobedience. I don’t think that’s a realistic ask given the penalties involved for doctors, but a handful of people will consider that. Most likely, civil disobedience will happen in states that are protective of abortion access, such as when a patient travels there from a restrictive state. The legal risk in that case is that a restrictive state could come after a physician [in a state without protections], but that may seem a reasonable risk.
What could the reversal of Roe mean for similar issues, such as access to birth control?
In terms of birth control, many states with abortion bans essentially say, “We’re not here to criminalize contraception,” but not all of them define contraception or abortion.
Many anti-abortion activists believe that IUDs, emergency morning-after contraceptives, and even the birth control pill are abortifacients [items that terminate a pregnancy]. So I think we’ll see some pharmacies and other businesses refusing to carry the over-the-counter birth control pill. And I think there’s an anti-abortion target on these forms of contraception more broadly — not yet, but maybe in the next five years.
We have also seen states using Dobbs to justify bans on gender-affirming care. Essentially they’re saying that in Dobbs, the Supreme Court said there’s no discrimination problem with banning abortion even though it’s primarily women who get pregnant. So, they say there’s no discrimination problem with prohibiting gender-affirming care even though that only affects transgender people. We’re already seeing such rulings from courts, and we expect to see more of them.
Finally, anti-abortion groups may make moves regarding in vitro fertilization, not necessarily to criminalize it, but to introduce pretty onerous requirements about the treatment of embryos. This could include requiring the implantation of any created embryo or prohibiting the use of embryos in research.
Race has played a prominent role in the abortion debate. How have the two sides approached race-related issues?
First, it’s important to note that all of this disproportionately affects patients of color because they have higher rates of abortion than their White counterparts.
Both sides make arguments about these higher rates. One of the anti-abortion arguments is that abortion providers are trying to eliminate communities of color. Abortion rights groups have instead argued that people of color are voluntarily seeking out abortions. Increasingly, they are also arguing that some of those abortions may be a result of societal failures to support patients of color who would actually like to have children.
There are attempts to use a 19th-century federal law, the Comstock Act, to block access to abortion medication. What are your thoughts on that?
The 1873 Comstock anti-vice law mostly prohibited mailing items you would typically think of as pornography but lots of other things too, things like Walt Whitman’s poetry [which sometimes frankly portrayed sexuality]. It also had some language forbidding the mailing of drugs or devices for abortion.
Anti-abortion activists recently got interested in the act because every abortion involves something sent in the mail. When doctors perform a surgical procedure, they’re obviously not using a scalpel that they made in the hospital.
The act is being used to fight telehealth prescribing of the abortion medication mifepristone. This is just a first move in a multistep strategy to use Comstock to criminalize a broader swath of abortions.
It may seem strange for anti-abortion activists to use a sexual purity law when they claim to want only to protect fetal life, not to regulate people’s sexuality. But they’re taking this approach because there’s no alternative path to a nationwide abortion ban. Even if Republicans control the White House and Congress in 2024, they’re unlikely to pass an abortion ban with no exceptions from the time an egg is fertilized. In addition, the Supreme Court has made pretty clear that they don’t recognize a fetus as a person yet and they’re not going to take a case to that effect. So in the short term, that leaves Comstock as the only way to a nationwide ban.
Where do you see the abortion debate headed in this country?
It’s hard to say. It’s hard to say not because I have doubt about where voters are going to land. It’s that so often in abortion politics, voters’ views are ignored.
So, the wild card in all this is the extent to which it’s the American people deciding this question versus the extent to which those who oppose abortion are able to direct the question to conservative judges or conservative lawmakers.
How does it feel to be a leading scholar in such a contentious field?
As you can imagine, it’s weird being sort of the leading historian on something that’s evolving right in front of you. It’s very odd to both live through something and study it at the same time, but it’s exciting in some ways, too. It’s much like the blessing and the curse that says, “May you live in interesting times.” We certainly are living in interesting times.
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