Experts Warn of Roe Reversal’s Impact on Patients, Ob/Gyns

Legal and medical experts discussed the future of reproductive medicine, as well as the challenges facing patients and physicians, following the Supreme Court’s overruling of Roe v. Wade in the decision on Dobbs v. Jackson Women’s Health Organization last week.

“If we have a patient, and we live in a state where we can’t provide emergency care and we help them seek emergency care in another state, can we be prosecuted?” asked Beverly Gray, MD, founder of the Duke Reproductive Health Equity and Advocacy Mobilization team at Duke University in Durham, North Carolina.

“These are real questions that may come up sooner rather than later,” she noted.

Gray said that she is worried that these kinds of concerns will have a chilling effect on the number of students entering the field of obstetrics and gynecology and the number of students applying to Duke’s program in particular. While abortions are still legal in North Carolina, that could change after the next governor’s election or legislative election, she pointed out.

“There’s just a lot of uncertainty,” she added.

Out-of-State Abortions

As for the consequences for patients traveling across state lines to obtain an abortion, “this is not a crystal clear legal landscape,” said Neil Siegel, JD, PhD, a professor of law and political science at Duke University and a former clerk of the late Associate Justice Ruth Bader Ginsburg.

The “right to travel” is an “unenumerated” right in the Constitution that the Court has protected since 1849, which was reaffirmed most recently in 1999 in Saenz v. Roe, which held that states cannot require “durational residency requirements” that would block individuals from receiving the “privileges and immunities of a state’s citizens.”

“With some measure of confidence,” Siegel said that he believes he could count five Supreme Court justices willing to say “that states are not permitted to prohibit their own residents from going out of state to obtain an abortion,” including Justices Stephen Breyer (or his replacement Ketanji Brown Jackson), Sonia Sotomayor, and Elena Kagan, as well as Justice Brett Kavanaugh who wrote specifically in his concurring Dobbs opinion that a state could not “bar a resident” from traveling to other states to obtain an abortion “based on the constitutional right to interstate travel.”

Siegel also anticipates that Chief Justice John Roberts “would agree with Justice Kavanaugh.”

However, he said he cannot say if there’s precedent on this point. “The court has not to my knowledge decided the case in which interstate travel is not simply banned, but banned for certain purposes,” he noted.

On the other hand, as a “practical matter,” Siegel suggested it “would be extremely difficult” in most circumstances to carry out this kind of ban, given that the “sister state” — the one that allows abortion — is unlikely to cooperate with any form of criminal law enforcement.

Medically Indicated Abortions

Another point of discussion centered around the definition of emergency or “medically indicated” abortions.

Jonas Swartz, MD, MPH, of Duke Gynecology Clinic in Durham, noted that it’s very common to see patients in his clinic who have a medical condition in which abortion would be safer than bringing a pregnancy to term. The challenge is determining the degree of medical risk that qualifies as a medical emergency.

“What do you define as a threat to maternal life? Is it a 1% risk of death? Is it a 30% risk of death? Is it a 50% risk of death? Do you have to wait for someone to be actively dying, actively having their organs shut down, or have a life-threatening infection, [before] you can intervene?” asked Swartz. Or is a suspicion that those things could happen enough to allow clinicians to intervene?

“I think we are trained to provide evidence-based medical care, and this is the only circumstance where I can think of that states are taking away our ability to provide evidence-based care,” he said.

Siegel noted that the due process clause of the Constitution includes protections for people against “vague laws, especially vague criminal laws.” Therefore, the language of those statutes and guidance from states is “going to matter a lot,” he said, pointing out that it would not surprise him to see certain federal courts determine that such laws are “unconstitutionally vague.”

“You can’t pass a vague statute … broadly banning abortion with some exceptions that are not particularly defined, and then doctors are forced to spin the wheel and … see where it lands,” he added, referring to whether or not doctors could be prosecuted for performing emergency abortions.

Looking Ahead

The crux of the problem with this decision is that “people will still need abortions, even if it’s illegal in their state. And so people will seek abortion and get abortions even if it is illegal in their state,” said Swartz.

Some of these people will do so safely, by traveling to another state or by “safely order[ing] medication … but other people will resort to unsafe means for abortion. And that means that we are going to be seeing more people in our emergency departments or in our clinics who have incomplete abortions or infections, and may have complications related to that,” he continued. “And so, I think, we’re really putting women’s lives in peril or pregnant people’s lives in peril by taking away this right.”

The U.S. “cobbled together this system [of] relying on Roe and now we’re facing a different challenge and we just need different tools, different experts. We need the communities that are impacted the most to be at the table,” Gray noted.

“We need to listen to stories of people who have had abortions, because I think what happens is that we talk about this as an abstract [thing] and we forget the humanity, the lives that are impacted every single day, of people that we’re caring for. … Until the shame and stigma around abortion can be unveiled … we’re going to continue to struggle,” she said.

“I’m hopeful that through all of this, through this horrible ruling, through the worsening of these disparities, that we’re going to come out of this with something better,” she added.