When the Supreme Court ruled in June on Dobbs v. Jackson Women’s Health Organization, it overturned Roe v. Wade and unraveled 50 years of constitutional protections for reproductive health care. This decision puts the power to regulate abortion in the hands of states with devastating implications, not only for safe and equitable access to reproductive health care, but for bodily autonomy, privacy, and civil rights broadly. And we know this decision will widen health inequities by exacerbating structural violence and disproportionately harming low-income women and Black, Latina, Indigenous, Asian, and other women of color who already have a difficult time accessing the reproductive health care that meets their needs.
With laws differing state-to-state and changing rapidly, there is also confusion about what health care can still be provided and accessed where and about what comes next in the continued pursuit of health justice. We wanted to offer some ideas about what healthcare providers and organizations can do as you think about your own next steps.
1) Keep Providing the Care You Can
While Dobbs removed certain reproductive healthcare protections, there are still some protections being reinforced by the federal government. (Note: Below we share the federal government’s position; this is not intended as legal guidance.)
- Abortions MUST still be performed when it is a stabilizing treatment for an emergency medical condition. Under the Emergency Medical Treatment and Labor Act (EMTALA), if a patient who is pregnant or is experiencing pregnancy loss seeks care for an emergency condition–like an ectopic pregnancy or a severe hypertensive condition–physicians are required to perform health- or life-saving abortions. When a state law prohibits abortion and does not include an exception for the life and health of the pregnant person, the EMTALA preempts state law.
- All individuals–regardless of their insurance provider or status–can still access medication to support bodily autonomy, including contraception, birth control, and Plan B. The Department of Health and Human Services issued guidance to more than 60,000 retail pharmacies reminding them that people who are recipients of federal financial assistance, including Medicare and Medicaid payments, cannot be discriminated against because of current, past, or future pregnancies. The guidance says that failing to supply these prescribed medications if the pharmacy otherwise provides contraceptives (e.g., external and internal condoms) may constitute discrimination on the basis of sex. Several states explicitly allow pharmacists to refuse to dispense contraceptives, including emergency contraception. Whether the federal guidance will supersede state law has yet to be tested.
- People have the right to cross state lines to get a legal abortion. While recognizing that traveling out of state to have an abortion is financially impossible for many people and further disadvantages socially and economically marginalized communities, the Department of Justice (DOJ) stressed that it is legal to cross state lines in order to have an abortion in any state where the procedure remains legal. DOJ also reinforced that sharing information about where and how to obtain a legal abortion is protected under the First Amendment. Some employers have offered to cover the travel expenses of any employee who needs to leave the state to have a safe, legal abortion. There are also funds that help support travel for people who need it. You can direct patients toward these funds and contribute to them, if you feel moved to do so.
2) Connect with Legal Resources in Your Community
Evolving state laws can lead to a lot of questions around individuals’ rights and what care can be both provided and accessed. You may also have patients who are in need of legal assistance. These organizations and resources can help:
- The federal government created a ‘know your reproductive rights’ website.
- The National Women’s Law Center, The Lawyers Committee for Civil Rights Under Law, and the National Health Law Program have provided guidance around the practical implications of the Dobbs decision.
- The Legal Alliance for Reproductive Rights is a newly-formed network of more than 50 private law firms that–starting later this year–will represent individuals and providers across the country who require legal assistance for seeking or providing an abortion. Local law firms in your community are also a place to direct questions about state laws and patients who need assistance.
- New York Attorney General Letitia James, in partnership with 24 national law firms and 8 nonprofits, launched a hotline to help New Yorkers and people visiting New York with legal information and resources about accessing abortion.
- Professional associations and primary care associations are also a good source of information around care provision.
3) Support Advocacy and Long-Time Leaders in This Space
As always in these watershed moments, we urge you to:
- Educate yourself and others on the history of sexism and white supremacy that is enabling this current iteration of long-standing structural violence, so that you know how to show up when you do.
- Find the community leaders and organizations who have been at the leading edge of change and protection for years and who will continue to build power in their communities (here is a list of some organizations that center Reproductive Justice and BIPOC voices). Then, think through how you can support them, individually and through the institutions you are a part of.
4) Organize and Vote to Enshrine Protections in State Law
Moving forward, the best way to protect reproductive rights–from abortion access to contraception–is by enshrining them in law, which means organizing and voting. We are less than 100 days from the midterm elections, and gubernatorial and state legislatures races in many states could determine the future of reproductive health care. Between now and then, people in at least four states will also vote on abortion-related ballot measures. In Vermont and California, voters will have the chance to add amendments to their state constitutions that explicitly guarantee abortion rights. While in Kentucky and Montana, residents will vote on whether to further restrict or ban abortion in their states. Of note, in the first ballot test of abortion rights in a post-Roe America, an overwhelming number of voters in Kansas rejected a state constitutional amendment this month that would have further restricted or banned abortions.
Ways you can support voting efforts include:
- Speaking out as health care providers about the importance of reproductive health care, and the impact restrictions have on people’s lives in your community. Encourage the institutions you are a part of to do the same.
- Reviewing state ballot measures and looking into candidates’ positions on reproductive health care. And, as always, vote.
- Encouraging the institutions you are a part of to host voter registration drives. Partner and align your efforts with local organizations that help register historically marginalized communities.
While we all process the devastating Dobbs decision and the harm it is already causing, we will continue to learn and work alongside you to build systems that are more just and equitable for all.
Sadena Thevarajah, JD Rishi Manchanda, MD, MPH.