Protecting Post-Roe Abortion | Regulatory Review

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Academics offer suggestions to protect abortion rights if Supreme Court overturns Roe v. Wade.

A leaked copy of a draft majority opinion from the US Supreme Court appears to indicate plans to overturn nearly 50 years of precedent giving constitutional protection to the right to have an abortion.

“If the Court annuls deerit will be up to our nation’s elected officials at all levels of government to protect women’s right to choose,” President Joseph R. Biden said in response to the leak.

In a report released last year, two experts from the Center for American Progress detail what President Biden’s call to action might look like in practice. In the report, Jamille Fields Allsbrook and Nora Ellmann predict that the Court will reverse deer and provide policy suggestions to federal and state governments to protect abortion rights.

In Roe vs. Wade, the Court found that the right to choose an abortion was fundamental under the 14th Amendment. Since then, the Court has repeatedly confirmed this interpretation. Yet, as Allsbrook and Ellmann explain, in recent years, the Court slowly whittled away that right.

In upholding state restrictions on access to abortion, a more conservative court signaled a shift in attitude toward access to abortion. As Allsbrook and Ellmann predict, “the current judicial philosophy of high court judges suggests that they may be more willing to overturn precedent and further erode the rule of law.” Roe’s guards or knock it over completely.

The leaked draft of Justice Alito’s majority opinion rejects any explicit right to abortion. But Allsbrook and Ellmann point out the potential damage of a rollover deer.

In 2019, 58% of women of childbearing age lived in states deemed “abortion-friendly”. Rules limiting insurance coverage, large distances between abortion clinics, and requirements for multiple visits and hearing the heartbeat before an abortion already severely limit access to abortion.

A study found that if the Court overturned the decision in deerabortion will likely be banned in 24 states and 3 territories.

Allsbrook and Ellmann point out that these barriers disproportionately affect marginalized communities, particularly because “black women disproportionately reside in states where abortion is prohibited.” In addition, insurance restrictions limit access to abortion for people with fewer economic resources. Because of wage inequality, this means the restrictions disproportionately fall on “Black, Latina, and Indigenous women, as well as people with disabilities, transgender people, and youth.”

Allsbroook and Ellmann insist that in the absence of continued constitutional protection for abortion rights, they must be enacted into statutory law by state and federal lawmakers.

They encourage Congress and state lawmakers to codify the right to abortion and move beyond it deer, which they describe as establishing a minimum floor for the right to abortion. They emphasize that state lawmakers should not wait for federal law before enacting these policies, whether through “legislation, ballot initiatives, or constitutional amendments.”

Lawmakers can further strengthen abortion rights by enacting laws that prohibit unnecessary restrictions on abortion care, such as the Women’s Health Protection Act, a bill introduced in the 116th Congress.

Even if the law protects the right to abortion, Allsbrook and Ellmann argue that the courts will play an important role in assessing the validity and necessity of abortion restrictions. They urge policymakers to prioritize the appointment of judges with diverse identities and a track record of supporting abortion rights.

Allsbrook and Ellmann encourage lawmakers to ease financial barriers to abortion by removing or limiting restrictions on insurance funding for abortion. They also argue that Congress should repeal the Hyde Amendment, which bars federal funds from paying for most abortions.

In addition, many states even prevent private insurance from paying for comprehensive abortion care. At the federal level, Affordable Care Act requirements discourage private insurance companies from covering abortion services. Billing requirements for abortion services in a 2019 settlement also led private insurance companies to drop coverage for abortion services, Allsbrook and Ellmann note.

In the absence of universal health care coverage that includes abortions, Allsbrook and Ellmann advocate that states and the federal government revoke all requirements and prohibitions that restrict access to abortion.

Like deerProtection of the right to abortion is under threat, Allsbrook and Ellmann stress the importance of strengthening and expanding alternative methods of obtaining abortion care. Abortions can be performed through a procedure or medication, in a clinic or at home. Medications and care through telehealth services have increased during the pandemic and they may provide a safe and accessible abortion option.

Medical abortion, consisting of two drugs, mifepristone and misoprostol, is approved by the United States Federal Drug Administration (FDA). Effective at more than 95%, medical abortion has serious adverse effects in less than 0.5% of cases.

The FDA has placed a Risk Assessment and Mitigation Strategy (REMS) on mifepristone, which means the drug is subject to “certain requirements regarding prescribing, dispensing, and taking the drug.” These limitations include preventing the drug from being dispensed by mail or pharmacy, making it difficult to provide an abortion via telehealth. Allsbrook and Ellmann note, however, that the drug has fewer proven side effects than various popular drugs, including Tylenol and Viagra. Allsbrook and Ellmann argue that the FDA should lift REMS on mifepristone because of its relatively limited health risks and ability to make abortion much more accessible.

The public will have to wait and see if the Supreme Court ultimately overturns Roe vs. Wade as the leaked draft notice indicates. But even if deer is not reversed, Allsbrook and Ellmann propose a roadmap to strengthen protection against abortion.

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