Data analysis by Sian Norris and Heidi Siegmund Cuda reveals who will be worst impacted by the Supreme Court’s leaked opinion to overturn Roe versus Wade

More than 64 million women and girls in America are set to lose the right to safe and legal abortion if a draft Supreme Court opinion on overruling two court cases that guarantee abortion rights goes ahead.

An investigation by Byline Times has calculated that a total of 64,257,000 women and girls – including those who are not of child-bearing age – live in 22 states that are “certain” to introduce draconian anti-abortion laws if the US Supreme Court votes to overturn the 1973 judgment in the case of Roe versus Wade.

Roe versus Wade recognised the constitutional right to abortion. A second Supreme Court case, known as Planned Parenthood versus Casey, found that states should not put “undue burden” on women and girls seeking abortion. 

The Supreme Court draft opinion on overturning these rulings was leaked to the news website Politico.  

Drafted by conservative judge Samuel Alito, it states: “Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives”. This means abortion laws being decided state by state, rather than the right to abortion being guaranteed nationwide. 

A further 15 million women and girls live in US states that pro-abortion research organisation the Guttmacher Institute deems “likely” to ban abortion should individual states be allowed to determine their own abortion laws. They are Florida – where Governor Ron DeSantis has said that abortion has “no place in civilised society” – Indiana, Montana and Nebraska. 

The states with legislation ready to implement and ban abortion are: Alabama, Arizona, Arkansas, Georgia, Idaho, Iowa, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming. 

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Nearly all of the 22 states – 17 – had higher than average numbers of households living below the federal poverty line. The official poverty rate in the US is 11.4%. In Texas however, which has already implemented a draconian anti-abortion law, the poverty rate is 13.1%. In Georgia, a state determined to ban abortion at six weeks, the poverty rate is 19.5%. Similarly, in South Carolina, which also is poised to ban abortion at six weeks, 22% of people live under the federal poverty line. 

Women living in poverty are disproportionately impacted by abortion bans as they are less likely to have the resources to travel out of their state to access reproductive healthcare. Black and ethnic minority women are more likely to be living in poverty and therefore are also disproportionately impacted by restrictions to abortion. 

“We know from decades of research that the impact will fall hardest on those who already struggle to access health care, including abortion,” Dr Herminia Palacio, president and CEO of the Guttmacher Institute, said.

“Even with Roe in place, affordable and accessible abortion care is a right that exists only on paper for many people who are marginalised and oppressed by structural inequities, including people with low incomes, black and brown communities and other people of colour, and young people.”

At least half of the states set to ban abortion have a higher than average rate of maternal mortality. They are also overwhelmingly male-run, with many of the states having an alarmingly low rate of women’s representation at a law-making level.

Take, for example, Alabama, where the maternal mortality rate is 36.4 per 100,000 births and where only 15.7% of law-makers are women. Arkansas, which wants to ban abortion when a foetal heartbeat is detected, has a maternal mortality rate of 45.9 per 100,000 births and its legislature is only 22% women. Kentucky has only one remaining abortion clinic and a maternal mortality rate of 40.8 per 100,000 births.

West Virginia has the lowest rate of women’s representation in the states poised to ban abortion – at only 11.9%. 

Mississippi, the state which introduced the Gestational Age Act that triggered the Supreme Court debate on overturning Roe versus Wade, has one of the highest maternal mortality rates in the US, at 33.2 deaths per 100,000 births. The national average is 23.8 deaths per 100,000 births. Women make up only 16.7% of law-makers and 21.5% of its population lives under the poverty line.


The Road to the Bans

The 22 states identified by the Guttmacher Institute as “certain to ban abortion” have all put legislation in place that could be triggered immediately to end the access guaranteed by Roe and Casey

These include so-called ‘heartbeat bills’ – or laws that ban abortion after the sixth week of pregnancy, before most women realise that they are pregnant. Twelve of the states are ready to ban abortion at 12 weeks. Alabama wants to introduce a near-total ban on abortion, as does Arkansas, Louisiana, Oklahoma and Utah. Other states will seek to reset to pre-Roe legislation. 

Crucially, many of these states have already implemented laws that make it harder for women and girls to access abortion when they need to. Although the Casey case decided that states could not put an undue burden on women needing abortions, states have interpreted this in a variety of ways.

Numerous states poised to ban abortion have implemented Targeted Regulation of Abortion Providers Laws (‘TRAP’ laws) which make it harder for clinics to operate. TRAP laws go beyond what is necessary for patient safety.

In some cases, clinics must meet a state’s standards for ambulatory surgical centres, even if they are providing abortion pills and not conducting surgery. Some TRAP laws also demand that doctors performing abortions have admitting privileges at a local hospital, even though complications from abortion that require hospital admission are rare, and therefore abortion providers are unlikely to meet minimum annual patient admissions some hospitals require.   

TRAP laws have forced abortion clinics to close – many of the 22 states have fewer than five clinics providing terminations, while some like Kentucky only have one. 

Other barriers include laws demanding women view an ultrasound before an abortion; undertake mandatory counselling; endure cooling-off periods; and that minors get parental consent before having a termination.

So-called ‘informed consent laws’ – designed to ensure that women have the information they need before accessing abortion – have been criticised for providing women with disinformation, including about the debunked ‘post-abortion syndrome’ and foetal pain. 

Executive director of Equality Florida, Nadine Smith, warns that this is just the beginning. 

“This draft ruling is an outrageous undermining of our most fundamental rights and imperils any ability to govern our own bodies,” she told Byline Times. “The leaked draft opinion overturning Roe versus Wade also explicitly criticises Lawrence versus Texas (a court ruling which overturned bans on gay sex) and Obergefell versus Hodges (which legalised same-sex marriage).

“Equality Florida has been a pro-choice organisation since our founding in 1997 – we know that these fights are deeply intertwined. They’re rooted in the fundamental rights of all to personal autonomy and control of our own sexuality. Dignity, equality, and freedom make LGBTIQ and abortion rights a common cause, and we’ll continue to fight back against these attacks and protect our rights.”

Polling persistently shows that access to safe and legal abortion is supported in the US. Even in states that are poised to pass anti-abortion laws, support rarely drops below 50%. Speaking to Byline Times last year, president of Planned Parenthood, Alexis McGill Johnson, called it “a tyranny of the minority acting to subvert the will of the people”.

Although the leak suggests that the Supreme Court will overrule Roe and Casey, the final decision is likely to be handed down in the summer.

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