0:07      Kay Summers: From the School of International Service at American University in Washington, this is Big World where we talk about something in the world that truly matters. It's been two years since the US Supreme Court overturned the nearly 50-year precedent of Roe V. Wade in the Dobbs V. Jackson Women's Health Organization decision. The key result of this decision was that the right to a safe legal abortion became a matter for individual states to consider. 14 US states now ban abortion. Five states now ban the procedure at either six or 12 weeks of pregnancy. And as anyone who's ever been pregnant can tell you, sometimes you don't even know you're pregnant at six weeks. However, a combined 31 states, plus DC, guarantee a woman's right to choose either between 15 and 22 weeks or beyond 22 weeks.

0:57      KS: Simply put, for those of childbearing age in the US, the degree to which you possess bodily autonomy depends on where you live. So today we're talking about reproductive rights and freedom two years after Roe V. Wade was overturned. I'm Kay Summers and I'm joined by Jessica Waters. Jessica is a professor at American University School of Public Affairs. She's a lawyer, a scholar, and a nationally recognized expert in US reproductive rights and policy. Jessica, thanks for joining Big World.

1:26      Jessica Waters: Thanks so much for having me.

1:28      KS: Jessica, over the past 30 years, the US has been one of only four countries to roll back abortion laws. The others on that list are Nicaragua, El Salvador, and Poland. So, I'm going to start with just one global question before we get into US domestic policy and politics. Amid a global trend of greater abortion legality and protections in countries from Mexico to Ireland, what does this outlier status mean for the US?

1:57      JW: I think that's a great way to put it, that we are an outlier, and I think one of the things that it is shining a light on is how little attention, care, and funding the US gives to questions of maternal healthcare. When we look at the countries that tend to be most restrictive with abortion care, and we are one of them now, they're also the countries that have the highest rates of maternal mortality and morbidity, meaning that, for example, a woman dies after she goes through childbirth. And it is no coincidence that they are linked in that way. So I think what this has done is it has put us in a category of countries where it is clear that maternal health is not a priority for the country, and that's across the spectrum of reproductive healthcare, whether it is quest,vions of being able to prevent a pregnancy, whether it is to carry a healthy pregnancy to term and deliver, whether it is support for parenthood, post-delivery, or whether it's the decision to end a pregnancy. So I really think that that outlier status that you've noted is a real one across the spectrum.

3:11      KS: Since Roe V. Wade was overturned, several states have introduced strict abortion legislation. Sometimes these are known as heartbeat bills. How have these bills evolved and what kind of precedent do they set for the nation as a whole?

3:26      JW: That's a big question. So the idea of a heartbeat law is not new. We certainly saw states try this in the decades post Roe, V. Wade. What is new is that there is very little ability to legally challenge them. Given that the US Supreme Court has said that states can pretty much regulate access to abortion care however they want. They don't need a good reason. They don't need a particularly compelling reason. They can do so however they want. So it's much more likely that these types of laws will stand. I think interestingly, however, the impact that it has, if we look nationally at abortion rates, they have not gone down. So nationally, the number of abortions happening in the United States each year has actually gone up slightly.

4:18      JW: What we are seeing is that pregnant people in states where abortion is banned or severely restricted now have to travel. So it is pushing pregnant people to travel to other states at the cost and expense of just the travel, the cost and expense of missing work, the cost,— and expense of childcare for existing children, and then also pushing a pregnancy later. As we know, the sooner, if someone is choosing abortion care, the sooner they can do so, the earlier in pregnancy, the safer it is. So what these laws are doing is they're not curbing overall abortion care in the United States. They're just making it harder, and they're making it more dangerous for pregnant patients.

5:05      KS: Harder, more dangerous, more terrifying, all the bad things.

5:09      JW: All of the above.

5:11      KS: Jessica, access to abortion medications has come under attack in the past two years as well, including a Supreme Court case that could see a potential ban on Mifepristone, one of the most commonly used abortion drugs. Why is access to these drugs so important and what are the potential ramifications of limiting access to these medications? And I would include methotrexate in that as well. I know that that's been another medication that they've tried to restrict access to. So why are these drugs important?

5:41      JW: So I think you're right that this is one of the more critical cases that the Supreme Court will see this term. Medical abortion is abortion by pill essentially, and one of the main drugs used in the two-drug regimen. It's typically Mifepristone and Misoprostol. And there are groups that have challenged the FDA's initial approval of Mifepristone and essentially are arguing that should be taken off the market. That's incredibly important because we now know that the majority of abortions in the United States are abortion by pill. About 60% of abortions in the US because most abortions are early in pregnancy, are abortion by pill. So removing that access, whether it is to completely take it off the market or it's to limit its availability, has huge ramifications for people seeking abortion care. One of the most important things the FDA did post decades of safety data was allow Mifepristone to be prescribed via things like telehealth. And this happened during the pandemic.

6:47      JW: And that created an ease of access when people can't get to multiple doctor's appointments, or they're living in states where abortion is severely restricted. The ability to obtain the pills via telehealth appointment became critical for access. And I think that's exactly why those opposed to abortion are going after access to Mifepristone. They know what they're doing. They know what they're doing is cutting off an access stream. So it's of critical importance. I actually think on that case, the Supreme Court is not likely to remove Mifepristone from the market. There are significant standing issues. Essentially, the plaintiffs who sued didn't really have the right to sue or be in court. So I think that in that case, we're likely to see the Supreme Court take a bit of a more conservative stance and not take Mifepristone off the market. But there's another huge Supreme Court case pending too. So we have a lot coming in June.

7:58      KS: Another legal issue that has been raised since Roe was overturned is the question of fetal personhood. And this is a phrase that we've heard more and more in the state of Alabama ruled in February 2024, that embryos had the same rights as living children, a decision that put many in vitro fertilization providers and facilities into a difficult legal and ethical situation. I think we all remember those reports of people who were told that their care was going to stop mid-cycle and care that they had invested tens of thousands of dollars in for very wanted pregnancies was not going to be allowed to continue because the clinics were unable to even assess their own liability if embryos had the same rights as living children. So Jessica, first off, what is the concept of fetal personhood? What does that mean?

8:45      JW: I think this is a really important conversation because when we think about personhood, you can be thinking of that in a couple of different realms. So I as an individual may have my own moral, ethical, religious beliefs about when I think life begins and when I think that I would choose to protect life in all of its forms. That is very different than legal personhood. And I really think we have to distinguish the two. The question of legal personhood is whether an embryo or a fetus is considered a person that has constitutional rights, whether it's protected under the 14th amenAdment, for example. In Roe V. Wade the court squarely addressed that question and said on the question of legal personhood, the fetus is not a person under the 14th Amendment, and because of that, abortion can be available. So if the fetus were considered a person under the 14th Amendment, then abortion would typically be considered murder. And the court said, that is not so.

9:49      JW: Ever since Roe, this concept of fetal personhood has not gone away. And frankly, the laws in the United States are really inconsistent around this. Even before Dobbs, we have a federal law and we have many state equivalents that make it a double crime to harm a pregnant person. So for example, if I was pregnant and I was murdered and the fetus did not survive, whoever harmed me could be charged with a double homicide under both federal law and most states. That's the creation of fetal personhood. We've also seen, well before Dobbs, prosecution of pregnant people. So if you have, for example, a pregnant woman who is using some form of drug while pregnant, we have seen countless prosecutions for things like child abuse or child neglect, which is the creation of fetal personhood.

10:42      JW: So I think it's really important to note that this is not new post-Dobbs. This has been a very concerted campaign for a very long time. Post-Dobbs, I think that's taken on new life, and no pun intended. And then the question in the Alabama case took it even farther because there we weren't talking about an embryo or a fetus that was already in a human. We were talking about an embryo that was frozen in a Petri dish. And the creation of personhood there was, I think the farthest a court has gone. And I think that's why it raised so many alarm bells.

11:24      KS: I'm always baffled by these attempts to stifle reproductive freedom, even when they seem to run at odds with the goals of some people to have children. I think it's undeniable that someone who pursues IVF very much wants a child. So how might legal battles over this idea of legally protected fetal personhood impact reproductive healthcare, particularly IVF, depending on how it's decided?

11:56      JW: Yeah, I think it will have huge implications. On the immediate, the question of IVF care. As soon as that decision came down, multiple clinics, including some of the largest ones in Alabama said, "we can't provide IVF care. We have to pause all of our services until we figure out legal compliance." There was then a legislative fix in the state of Alabama, and some clinics began offering that care again. But just last month, a number of clinics in Alabama said, "Look, even with that, the liability, potential liability here is too great, and at the end of the year, we are going to cease all IVF procedures." So there are still ripple effects from that. If we begin to see similar decisions in multiple states, which I think we will, it creates that same level of medical uncertainty. And I think in the face of medical uncertainty, doctors are going to stop providing needed services like IVF. And I think that's the big thing that gets missed.

13:02      JW: All of these cases, if we're talking about Mifepristone, if we're talking about the Arizona law that said a doctor could not perform an abortion, even in the case of rape or incest, if we're talking about this law, this ruling that really limited access to IVF, what we're talking about is interfering with the doctor-patient relationship. We're talking about second guessing medical judgment and medical expertise, and we're having judges and legislators who have no medical training making these decisions. And I think it's easy to cabin reproductive healthcare is a "special kind of care." But we really need to be thinking about what are we saying generally about the state of medicine? What are we saying generally about the doctor-patient relationship? Even tracking back to your question of fetal personhood, and I noted the prosecution of pregnant people. That typically happens when a doctor refers their patient to law enforcement and that the stories all trust in that relationship.

14:15      KS: Jessica Waters, it's time to take five. This is when you, our guest, get to daydream out loud and reorder the world as you'd like it to be by single-handedly instituting five policies or practices that would change the world for the better. What are five policies that government can enact to protect reproductive health?

14:33      JW: I feel so powerful. All right. If I could wave my magic wand, I would really start with the spectrum of reproductive healthcare. So one, I would hope that states or the federal government would be funding and promoting comprehensive sex education. If there are people who are opposed to abortion care. The best way to prevent abortions is to make sure people don't have unplanned pregnancies. So I would really challenge states and the federal government to focus on comprehensive sex-ed in our schools with accurate medical information. So that's one. I would also think about with the spectrum of reproductive healthcare, supporting people who continue pregnais ncies. I think one of the most important things that the state or federal governments could do is to really think about comprehensive paid leave. We fail dismally at this in the United States, and if we want to support healthy families and we want to support people continuing pregnancies, you need to be able to do that on the other side. So paid leave would be another one.

15:49      JW: I would also focus on questions of lower income patients' access to the range of reproductive healthcare. We have several federal restrictions in place that restrict the access of federal funding for things like abortion care. So that means that if you are getting your medical care through government assistance, your options are severely limited. So I would look at the disparate impact that has and really think about changing those restrictions on funding. In my ideal world, we would go back to a pre-Dobbs world. I always hesitate to say, go back to Roe because Roe had its flaws. But I would go back to a world where the question of whether to continue or end a pregnancy is left to the pregnant patient and their doctor, and I would want to keep that decision there. So I would, in an ideal world, remove the restrictions on access to care and leave that decision where it belongs, with the pregnant patient and their doctor. I think that was four. Okay. So number five. Yeah.

17:03      JW: So five, I think I would spend time looking at our foster care system. We know that if a child ends up in foster care, their outcomes are likely to be not good. If we look at children in foster care, they are more likely to experience sexual violence. They are more likely to end up incarcerated. They are more likely to have worse educational outcomes. And we know all of these things. So if we're talking about reproductive healthcare, we need to be talking about how do we educate people? How do we give them adequate funding? How do we support them continuing pregnancies? How do we support them not continuing pregnancies? And then how do we support the children who end up in the foster care system and make sure that they have better outcomes? So those would be my five.

17:59      KS: Thank you. A side question here. In the last days of Roe, in the last years, one of the tactics that we saw were laws that were passed to make it so that clinics had to uphold unreasonable standards, that doctors had to have privileges with local hospitals, that all of these, there were a lot of onerous restrictions, and usually the rationale stated was that it was to protect the health of the woman. So I'm curious with Mifepristone is the argument, oh, we're just trying to protect the health of women so that they don't get this medication without appropriate supervision or medical care nearby, or is it simply states have the right to legislate abortion care and we're not going to let you have it? What's the argument?

18:53      JW: Well, I think all of those arguments have been made, but the one before the Supreme Court, this is interesting, and this is why I think that the plaintiffs are not likely to succeed. The plaintiffs that are challenging the original approval of Mifepristone essentially say that FDA didn't have the right to approve Mifepristone and then make the modifications to its availability. But the plaintiffs are actually a group of medical professionals who are opposed to abortion care. They do not provide abortion care. They don't want to provide abortion care. This is not something that they do. And it's interesting, this group formed after the Dobbs decision and formed very intentionally in Texas knowing that if they brought this case in a Texas District court, they were likely to succeed. And that if it was appealed to the Fifth Circuit, they were likely to succeed. And that's exactly what happened.

19:47      JW: But their argument essentially, because the question in these cases comes down to what's the harm? Who was harmed? And their argument of harm is less focused on patients and more focused on doctors. They essentially argue that if there is a doctor opposed to abortion care and that doctor is working in a hospital or working in an ER, if that doctor, if a patient shows up in the hospital, in the ER and she has had a complication from taking Mifepristone, these doctors argue that they are harmed because then they have to help that patient who shows up in the emergency room. And they're essentially saying they're aiding and abetting an abortion.

20:32      JW: It's a fairly ridiculous argument that the Supreme Court, even our conservative justices seem to squarely recognize. But I think one of the most terrifying things is in the case briefs themselves, and in the statements from doctors, they say things like, well, I'm harmed because I'm taken away from my "normal patients." And by that they mean patients who aren't seeking abortion care. And creating that sort of dichotomy that a doctor would say, I have a patient who is more deserving of care than another patient, that we should be paying a lot of attention to. And I think it's pretty frightening.

21:13      KS: And I want to bring it back to people, and the people who are most affected by all of this and their overall health, because I think anytime you talk about abortion care, reproductive rights, it focuses on one aspect of people's lives and one aspect only, and sets aside the fact that they have other aspects to their health than just their reproductive health. So an analysis by the Guttmacher Institute found that in the first six months of 2023, nearly one in five patients were traveling out of state for abortions. And I mentioned at the top the number of states that have it as legal. But one of the thing that is shocking when you look at the map is the number of states that have these more onerous bans and restrictions are all grouped together. So there are these huge swaths of the country that are deserts for care. So for this last question, focusing on the health of the patient, what impact is the requirement for some to travel out of their home state for an abortion having on women's health?

22:24      JW: A potentially really significant impact on women's health. I think a couple of things to play out there. One, we had mentioned earlier that when you have to travel, you're pushing the pregnancy later and later, and you can imagine being a lower income woman who is already a mother as most abortion patients are, and having to figure out, how do I travel hundreds of miles with my existing job and my existing family and all of my obligations? And you can imagine that taking weeks to figure out. So then you're pushing care later. As I also mentioned, there's this interference with the doctor-patient relationship. And that goes as far as emergency situations. We're starting to see these cases pop up around the country where there is a patient who is experiencing health crisis and goes to a hospital or goes to their doctor and says, I've been bleeding. I have an infection. There's the danger of sepsis. And now doctors' first call is to their lawyers to see can we provide this care?

23:33      JW: And there have been these terrible cases of women essentially sitting in the parking lots of hospitals waiting to be literally close enough to death so if the doctor can perform the care. And when we're in that situation, it's like, how can we possibly be saying that we are protecting women's health if the new standard of care is let's wait until you're close enough to death in these states that have really limited care. So the impacts on health are phenomenal, and it is worth pointing out that abortion care now depends on where you live and how much money you have. And the people who are going to be most impacted by this are the people who are already marginalized. We're talking about Black and Brown women, we're talking about low income women. They are the ones that are going to shoulder this burden. If you are a upper middle-class White woman, you're going to figure out how to get your care because you can afford it. You have the disposable income to do it. If you don't, you're put in this untenable situation where you're seriously risking your health.

24:45      KS: Jessica Waters-

24:49      JW: Very uplifting. I know.

24:51      KS: Yeah. It's so necessary. Thank you for joining Big World to discuss reproductive rights and freedom. It's been a privilege to speak with you.

24:58      JW: Thank you.

24:59      KS: Big World is a production of the School of International Service at American University. Our podcast is available on our website, on Apple Podcasts, Spotify, and wherever else you listen to podcasts. If you leave us a good rating or a review, it'll be like waking up and finding out that your rights have not been abridged while you were sleeping. That was all just a terrible nightmare. Our theme music is, It was just Cold by Andrew Codeman. Until next time.