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The Dobbs effect today: Abortion ballot initiatives, expected higher mortality, more litigation

In Arizona, the state’s highest court upheld a Civil War-era abortion ban. Florida and South Carolina moved to restrict abortion to six weeks — before many people know they are pregnant.

Abortion rights activists outside Supreme Court
Abortion rights activists rally outside the U.S. Supreme Court in Washington, D.C. on April 15, 2023. Hundreds gathered on Capitol Hill as part of a nationwide day of protest, organized by women's rights advocates and health care providers, opposing legal efforts to restrict the abortion drug mifepristone. (Photo by Alejandro Alvarez/Sipa USA)(Sipa via AP Images)

In Arizona, the state’s highest court upheld a Civil War-era abortion ban. Florida and South Carolina moved to restrict abortion to six weeks — before many people know they are pregnant. The Alabama Supreme Court ruled that frozen embryos are “children,” temporarily throwing fertility treatments, such as IVF, into uncertainty and igniting a national debate. 

Meanwhile, anger and fear unleashed citizen-driven ballot initiatives around the nation that sought to protect abortion access, and in some cases, competing efforts to codify no right to abortion in some state constitutions. 

And amid all of that, emergency room physicians in Idaho and other states nationwide are still waiting for the U.S. Supreme Court to decide whether they are subject to criminal penalties for providing an abortion even during a medical emergency.

It has been two years since the U.S. Supreme Court overturned the landmark Roe v. Wade decision after 50 years and ushered in the Dobbs era, allowing states to freely regulate abortion access for the first time since 1973. Dobbs triggered confusion and chaos in the reproductive health care landscape as patients and providers attempted to parse an ever-changing patchwork of laws around the country during considerable legal wrangling.

Some trends have emerged with particular salience and offer a possible preview of what is to come before and after the November election.

Ban states see as much as 26% reduction in medical residency applications

One of the most significant effects of Dobbs is among obstetric providers in the 14 states with abortion bans. The Association of American Medical Colleges published data in May showing fewer new graduates of U.S. medical schools applied to residency programs in states with bans. The decreases were particularly noticeable in ban states such as Tennessee and Alabama, with decreases of about 20% in both between 2023 and 2024.

Missouri showed one of the largest decreases at 25.7%, a drop from the previous year, which was still down almost 11%. Arizona experienced an even steeper decline of 26.4%, even though it is a state with a 15-week ban rather than a near-total ban.

Kendal Orgera, lead research analyst at the Association’s Research and Action Institute, said the data is collected between September and May 31 each year, and overall, there was an increase of just eight applicants for OB-GYN specialties nationwide.

“The biggest thing is the areas that already have problems with access to care are going to feel the impact first and foremost,” Orgera said.

Some ban states, such as Idaho and Mississippi, do not have residency programs specifically for OB care and have to rely on outside recruitment. That can make it especially difficult to fill positions in those states, Orgera said, in part because many people who match with a residency program tend to stay in that state to practice full time.

“People (who are in residency programs) are in their 20s and 30s, and they want to choose a home for the long term,” she said. “These are people who want to settle down and have families. Would a physician who wants to become pregnant choose a state with ban laws?”

It was the reason Dr. Leilah Zahedi-Spung left her job in Chattanooga, Tennessee, after her fellowship. In January 2023 she moved to Denver, Colorado where abortion is legal. “It became abundantly clear I had a giant target on my back as the only person doing this kind of care,’’ she told Tennessee Lookout last year. “There was nothing that anyone, including the hospital, could do to protect me from criminal prosecution.”

For now, Orgera said she can’t say with certainty whether the restrictive abortion laws are actually the reason for the drop in applications, but the Association is working on a survey that would be given to prospective residency applicants in September asking them to give those reasons.

“I’m hoping the sample size is large enough to give us some good data to work from,” she said. 

Infant, maternal mortality rates expected to rise in states with restrictions

Prior to the Dobbs decision, maternal and infant mortality rates were already higher in states that attempted to restrict abortion access as much as possible without outright bans, including placing limits on who could provide an abortion and instituting waiting periods.

Now, as physicians in some states struggle to determine sometimes vague language in the law about when an abortion is deemed acceptable, pregnant patients have been forced to wait to receive care, resulting in near-catastrophic consequences. A doctor in a rural area of Idaho said in a brief to the U.S. Supreme Court that after a patient of hers experienced a very premature rupture of membranes, when the amniotic sac breaks, she felt forced to wait until the patient developed a serious infection called chorioamnionitis before she felt safe to intervene and terminate the pregnancy. 

Florida resident Anya Cook had a similar story of her water breaking at 16 weeks — just after the deadline of 15 weeks for an abortion that existed in Florida at the time — and she was sent home. She later miscarried and hemorrhaged so much blood she nearly died.  

A group of women in Texas sued the state over its abortion ban because they experienced serious medical complications and said they couldn’t receive proper treatment. The Texas Supreme Court rejected the lawsuit at the end of May, but similar lawsuits are still pending in Tennessee and Idaho.

 

Maternal mortality rates across the country decreased between 2021 and 2022, the last year of available data from the Centers for Disease Control and Prevention, but it remains much higher among Black women and higher in states with more abortion restrictions. As of 2022, the rate for Black women was 49.5 deaths per 100,000 live births, compared to 19.0 among white women and 16.9 for Hispanic women.

Cumulative data from the CDC between 2018 and 2022 showed Tennessee with the highest maternal mortality rate of 41.1 deaths per 100,000 live births, followed by Mississippi with 39.1 and Alabama at 38.6. All three states have high Black populations and are often classified as maternity care deserts, with entire counties that do not have hospitals or providers for obstetric care. Research has shown that maternal mortality increased between 1995 and 2017 in states that increased their abortion restrictions.

The numbers are much lower in states with broad abortion access, including California with the lowest number at 10.5 deaths per 100,000 live births, followed by Minnesota at 12.3.

The data for post-Dobbs years is still undetermined, but experts have predicted those numbers will increase further now that the procedure is criminalized for providers in 14 states. Some experts have also speculated that the data in states with bans may become less reliable as well because of fears of prosecution.

Numbers for infant mortality are consistent with the maternal mortality trends as well. The same set of CDC data between 2018 and 2022 shows the highest infant mortality rate in Mississippi, with a death rate of 8.7 infants per 1,000 births. The next highest is in Arkansas, with a rate of 7.63, followed by Louisiana with 7.56. Inadequate access to prenatal care is again cited as a contributing factor, and one recent study from the American Journal of Preventative Medicine linked abortion restrictions with an increase in unintended pregnancies among families that already struggle to access adequate health care.

“With the widening gap in comprehensive reproductive care access across the U.S., it is very concerning to consider that the current disparities in maternal and infant health outcomes will likely be exacerbated,” the study said. “Unless policies are implemented to improve the equitable access to and provision of comprehensive reproductive care, birthing individuals will have very different experiences of care and health outcomes depending on geography. This includes not only access to abortion facilities but to health insurance and access to care in rural areas.”

‘We are still in the very nascent stages’ of abortion ballot initiatives

With lawmakers and special interest groups continuing to pass abortion bans and restrictions, some citizens have taken matters into their own hands and asked voters to weigh in on what state policy on abortion should be.

So far, four state ballot initiatives meant to enshrine abortion access have officially qualified for the November ballot, in Colorado and Maryland, where access is already broadly legal, and in Florida and South Dakota, where a six-week ban and near-total ban are in effect, respectively. As of Friday, the organizers working to ensure abortion access remains in Montana said they collected more than enough signatures to qualify for the ballot there as well.

Arizona, Arkansas and Nebraska face deadlines for signatures in July, according to the Fairness Project, a ballot initiative-focused group that has been assisting volunteers with financial and organizational resources in Arizona, Florida, Montana and Missouri. The Project also worked on the successful ballot initiatives in Michigan and Ohio over the past two years.

Kelly Hall, executive director of the Fairness Project, said the initiatives require significant financial resources. Even if it looks like abortion-rights advocates have a lot more funding than the anti-abortion rights side, as was the case in Ohio and Kansas, the resources required to pass an initiative are vast in order to gather enough signatures and reach out to voters ahead of the election.

“They aren’t in a place where they’ve had to show any of their cards,” Hall said. “Their side is just getting to sit on whatever war chest they have to use later this year.”

Kansas was the first testing ground for a ballot measure focused on abortion in the wake of the Dobbs decision. That election took place on Aug. 2, 2022, less than two months after the opinion was released. It would have amended the state constitution to say there is no right to an abortion and given the legislature authority to then pass laws regulating and potentially banning it. It was resoundingly defeated by a nearly 59-41 point spread, and abortion is still legal in Kansas until 22 weeks.  

However, legislators in Kansas have continued to pass anti-abortion measures, including a bill in April that requires providers to ask patients for the “most important reason” for their abortion before the procedure. The Center for Reproductive Rights and Planned Parenthood Great Plains are suing the state over the law.

Although some could take that as a negative sign of the effectiveness of successful ballot initiatives, Hall said that initiative was different because it was not affirming access to abortion. In Ohio, voters gave explicit approval to add reproductive rights to the state constitution.

“Ohio had a six-week abortion ban that was poised to go into effect,” Hall said. “The courts dismissed that ban and now … Ohio lawmakers (are) saying, ‘The voters have spoken, and you need to recalibrate your expectations. So Kansas is not the right comparator, because their lawmakers still do feel that they have a lot of wiggle room about what they can do because there’s no explicit constitutional protection.”

Hall said for as many states as there are already going after initiatives, she thinks this is just the beginning.

“We are still in the very nascent stages of reproductive rights ballot measures being a thing in this modern era,” she said.

Litigation overload is a strategy for a national ban, ACLU attorney says

One thing that’s certainly been difficult to keep track of in the post-Dobbs era is how many cases are pending in courts nationwide at the state and federal level, including two recent cases before the U.S. Supreme Court involving access to mifepristone and emergency abortion care.

Jennifer Dalven, director of the Reproductive Freedom Project at the American Civil Liberties Union, said the firestorm of litigation is part of the overall strategy of anti-abortion activists.

“In the Dobbs majority opinion, there was this notion that the decision would somehow end litigation, and the briefs on our side certainly said that wasn’t true, that wasn’t going to happen, in part because the other side — this was never their endgame,” Dalven said. “The endgame is to ban abortion nationwide and not to stop there. Abortion is obviously at the forefront of what we’re seeing most often but we’re seeing other aspects of reproductive care, including IVF and contraception, under threat.”

While the mifepristone and ER abortion care cases are examples of anti-abortion litigation, many more lawsuits are taking place at the state and district court levels to challenge the bans and other abortion-related laws that have passed since 2022. Many challenges to the overall abortion bans have been unsuccessful, while others are still pending. Other lawsuits are still underway to preserve access to the abortion pill, to challenge abortion laws meant to restrict interstate travel, or to clarify that an abortion is permitted in medical emergencies to preserve a patient’s health, not just to prevent death. Another recent lawsuit is challenging Kansas’ recent law requiring providers to gather information about a patient’s “most important reason” for getting an abortion. 

If former President Donald Trump wins in November, Dalven said she expects anti-abortion litigation and lawmaking to increase, especially if Trump follows the outline of the Heritage Foundation’s abortion and reproductive health care wish list in Project 2025.

“It’s incredibly important that people know that when they are thinking about casting their ballot in November,” she said.

Some advocates find silver linings in the past two years

Some reproductive rights scholars, even those who have been researching the issue for more than 30 years like Tracy Weitz, have found reasons to hope in the post-Dobbs era.

“I think what’s inspiring is the extent to which the resilience of the abortion delivery system has shown up,” Weitz said.

During the COVID pandemic, access to medication abortion through the mail rapidly expanded, she said, and it made it easier to ramp up that system further when the Dobbs decision came in June 2022. Now, about 18% of all abortions in the U.S. are obtained through telemedicine, particularly in states that have passed shield laws to protect providers from prosecution by other state governments where abortion is banned.

“Many of us knew that before Dobbs, access was terrible,” Weitz said. “Even in states where access was good before Dobbs … we’re seeing increased utilization of abortion because some of the barriers in those states have been reduced.”

She added that more people are realizing there is more than just one type of abortion patient — not just those who don’t want to have a baby — and both populations are hurt by abortion bans.

“I think people who banned abortions really thought you could distinguish between the kind of OB care that’s necessary when someone has a wanted pregnancy and the kind of OB care that you do in abortion, and they didn’t understand that it’s the same medical intervention,” Weitz said. “You can’t ban one without impacting the other.”

This story was originally posted by News From The States


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