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Post-Dobbs: Women are Dying Here Too


Credit: Planned Parenthood


International Background


In the past century, abortion and reproductive rights have been disputed, retained, and stripped the world over repeatedly. As women achieved more rights than ever before in the euro-centric world, their rights came with push-back. We highlight just three countries to display how bans on abortion affect economies and societies.


Although we could choose just a few examples, we also acknowledge that this problem is prevalent all over the world from Senegal, to the Philippines, to Jamaica, to Poland and most recently, the United States.


Romania


During Soviet control in Eastern Europe, surgical abortions were readily available, but states put strict restrictions on contraceptive access. This system led to an exceptionally high abortion rate in Romania. The rate peaked at a startling average of 3.9 surgical abortions per woman, the highest rate recorded in history. In the 1960s, over one million Romanian women underwent an abortion procedure per year.


To increase the Romanian population, in October of 1966, the new communist leader, Nicolae Ceausescu, made abortion largely illegal. A dramatic shift after decades of access. In just months, deaths from unsafe abortions skyrocketed. Between 1966 and 1989, when Soviet control finally ended, Romania’s maternal mortality rate doubled to 169 deaths per 100,000 live births. In comparison, the maternal mortality rate in New Zealand today is just 1.7 women per 100,000 live births. Even the U.S., with the worst maternal mortality rate in the western world, has a rate of 23.8 parents dead per 100,000 live births.


Days after Ceausescu’s fall in 1989, his anti-abortion law was abolished. Today, abortion is available in Romania upon request. In just one year, the maternal mortality rate fell back to approximately 84 per 100,000 live births. And this mortality rate was still while Romania had limited contraceptive access. Women were already more frequently surviving their procedures.


Finally, through the 1990s and early 2000s, contraceptives became more widely available. The induced abortion rate in Romania dropped incredibly from 163.6 per 1000 women in 1990 to just 10.1 per 1000 women in 2010. In conjunction, abortion-related maternal deaths dropped from 147 to just 5.2 women per 100,000 live births. That is over a 2800% drop.


In just a few decades, the world saw that both safe abortion access and contraceptive access directly correlated with maternal mortality. Countries around the world may learn from Romania’s lesson to keep their populations that give birth alive.


Ireland


On the other end of the continent, and 80 years later, Ireland may have finally learned that lesson. In June of 2017, the United Kingdom’s government announced that women of Northern Ireland would be able to access free abortions under the NHS in England. In 2017, just six years ago, abortion was largely inaccessible in Northern Ireland. To take advantage of the NHS, in 2020, a startling 371 women traveled from Northern Ireland to England for safe abortion access. However, just one year later, in 2021, a total of about 161 women traveled to England and Wales in 2021. Although these women still made up 26% of all non-residents that traveled to the UK for an abortion that year, the overall number dropped by about half.


At first glance, the reason fewer women traveled to England for abortion access is because of Ireland’s decriminalization of abortion that passed in March of 2020. Just at the start of the COVID-19 pandemic, Northern Ireland agreed to permit abortions up to 12 weeks. A small, but significant victory on its face.


Unfortunately, also, and more significantly, women were less able to travel to England to access a safe necessary procedure because of the global pandemic. Limited travel was more significant because as of May 2022, Stormont’s Department of Health disagreed about setting up any abortion service providers in Northern Ireland. While a step in the right direction, the victory reproductive rights advocates celebrated has so far been largely performative.


El Salvador


A bit closer to home, in El Salvador there is a complete and total ban on abortion. Abortion is now a severe crime, prosecuted as unconstitutional since the Salvadoran government wrote a ban into the constitution in 1998. In less than three decades, at least 182 women have been prosecuted for aggravated homicide as a direct result of suspicions of abortion. It must be suspicions alone because there is no clear way for medical professionals to determine an intentional abortion versus a miscarriage or early pregnancy loss. In fact, miscarriages have been medically called “spontaneous abortions'' for centuries.


The same month that the U.S. Supreme Court released the Dobbs decision, in El Salvador one such woman was finally freed after a decade imprisoned under the anti-abortion regulations. In 2011, thirty-three-year-old Jacqueline came into the hospital for help during an obstetric complication. Her daughter survived the complication, but shortly after the birth Jacqueline watched as government officials ripped away her newborn and her eight-year-old son. Police arrested Jacqueline and courts sentenced her to fifteen years for attempted murder. Jacqueline is one of many women rightfully terrified to get medical help during pregnancy. Mirna Ramírez, another imprisoned mother, saw her friend denounce her to authorities after Ms. Ramírez suffered an unexpected premature birth at home. Again, although her baby survived, courts sentenced her to fifteen years for attempted murder.


The severity of these anti-abortion trials are not waning, arguably they have increased. Salvadorian prosecutors and judges now argue that women who fail to save their babies should be charged with murder and sentenced up to forty years. This is regardless of the viability of the fetuses. So women who attempt to save their babies, but nothing can be done, may be imprisoned for decades.


However, the prosecution of miscarrying mothers strongly disproportionately affects the poor. In disadvantaged communities women are often illiterate and know little about reproductive health. They go to the hospital, the only place they can access help in their desperation, and they end up in prison. In contrast, rich women fly themselves to other countries for abortions. Just as in the United States, strict regulations on medical care primarily hurt the poor.


Poignantly, after the leaked decision of Dobbs, Salvadorian reproductive rights campaigner Morena Herrera stated, “I warned them that this law would end the presumption of innocence for pregnant women, which is exactly what happened. It’s the same risk that the U.S. is now facing.”


While these stories come thousands of miles away from the United States, they are not foreign concepts here. As this author’s earlier article Reproductive Litigation Six Months Post-Dobbs showed, parties in the U.S. want women to likewise have difficulty accessing contraception. Parties here also would control abortion so more people give birth against their wishes. And protests here are equally necessary.


What Has Already Happened in the United States


Since the Supreme Court stripped roughly half the population of their right to access critical healthcare in Dobbs v. Jackson Women's Health Organization, the U.S. has continued to backslide on the right to abortion and access to reproductive health. As soon as the decision was handed down nearly a year ago, 13 states immediately had abortion bans in place due to trigger laws. The immediacy of the bans goes to show forced-birth advocates have wasted no time in their continuing crusade against reproductive freedom in the U.S.


The impact the Dobbs decision has had on people who give birth has been immediate and disproportionately impacted people of color. Two leaders amongst anti-choice states, Texas and Idaho, have started to experience OBGYNs and other health care providers fleeing the state or halting baby deliveries altogether. Texas, for example, has a physician shortage within 249 of its 254 counties and is continuing to see health care providers leaving the state in droves. Idaho has now had two different hospitals cease delivering children and close their maternity or labor and delivery wards altogether. And again, in Idaho, health care providers have pointed to new abortion regulations as a catalyst for halting their practice in the state. Both states’ abortion laws are creating healthcare deserts, not just for people who give birth, but for all types of healthcare, as physicians choose to work in states where they will not be jailed for doing their hippocratic duty.


The U.S. has a disappointing record when it comes to maternal mortality, but the most recent numbers from the CDC show the maternal death rate is continuing to rise. What is worse is that these 2021 statistics are from a pre-Dobbs world, showing the U.S. has struggled to support people giving birth even before our highest court adopted a pro-forced birth stance. Black women suffered from the highest rate of maternal mortality before reproductive rights were reduced, and statistics show that black women are also the most disproportionately affected by the new loss of access to reproductive healthcare.


Further contributing to the brewing reproductive healthcare crisis, Mifepristone, a long-approved and safe medication used to induce the most common type of abortion, has been attacked by a federal judge in a new ruling revoking the drug’s FDA clearance. A different federal ruling contradicts the order revoking Mifepristone’s FDA approval, setting the stage for this issue to make it to the higher courts. If Mifepristone is taken off the market, it will be another blow to people’s ability to control their own reproductive system. And even if the drug remains available, people have already brought suit against their partner for taking the drug. Whether by the hand of the state or a private party, people’s reproductive freedom is waning in every sense.


The United States’ track record in combination with new lawsuits and heartbreaking anecdotes shows America has entered the dangerous and undignified territory other countries have gone through after cutting back reproductive rights. The landscape of litigation and where it is focused across the country can give a guide to what may be happening in the fight for reproductive freedom in the coming months.


Where Litigation is Centered in the United States Post-Dobbs


The current aftereffects of the Dobbs ruling are already chilling medical professionals, and there is no sign that there will be any relief on the horizon. All signs point to more litigation in the near future, with women’s rights hanging in the balance on a state by state basis.


In Texas, a suit was filed by a handful of women and their doctors against the state of Texas. In their complaint, they alleged that pregnant women in Texas are being denied access to “necessary and potentially life-saving obstetrical care” because their doctors fear liability under Texas’s abortion bans. One of the plaintiffs was forced to wait until she was septic to receive abortion care, which caused one of her fallopian tubes to become permanently closed. Other plaintiffs required life-saving medical care, but had to travel across state lines to as far away as Seattle to receive care. This care was necessary to ensure the health of these mothers and the other fetuses they were carrying. Regardless, faced the with the prospect of steep punishments from the state of Texas, doctors and hospitals are choosing to turn away patients, even those facing medical emergencies, instead of risking their careers and freedom. The punishments for violating the abortion ban are steep: loss of medical licenses, fines of hundreds of thousands of dollars, and up to 99 years in prison.


In the face of such severe punishments, it is no wonder that many doctors are choosing to turn away patients in need of life-saving medical treatment. The effect of this is, in the short time that this ban has been in place, several named plaintiffs have already experienced severe health consequences and near death experiences as a result. There are likely many more who did not join the lawsuit who share similar stories. The number of women facing severe health problems will only go up as long as this ban is in place and doctors are forced to make difficult decisions. Unfortunately, one of these cases may result in the death of a pregnant woman solely because she lived in the wrong state.


Anti-choice politicians have shown no signs of slowing down. A Texas federal judge recently ruled that the Food and Drug Administration (FDA) approved mifepristone, one of two drugs used in medication abortion, must be banned because it was unlawfully approved by the FDA back in 2000. Judge Matthew Kacsmaryk, a Trump appointee known for his anti-choice views, argued that the FDA manipulated and misconstrued certain parts of the drug approval process to “greenlight elective chemical abortions on a wide scale.” Such an action comes at a time when access to mifepristone is the only way millions of women will be able to have an abortion without traveling across state lines. This ruling is unprecedented in its nature; under normal circumstances, there is a process to eliminate drug approval for a drug that is already on the market. It is a years-long process that involves many critical steps to ensure that the decision is based on evidence and is medically sound. This ruling flies in the face of history and procedure, avoiding many other avenues to challenge a drug’s presence on the market. This is essentially a rogue, unilateral decision that deprives millions of women access to a safe medication.


The ruling was stayed for seven days to give the Biden administration time to appeal. A federal judge in Washington issued a competing ruling on the same day that blocked the FDA from removing mifepristone from the market in 17 states and the District of Columbia, where abortion is currently legal. States like New York and California are stockpiling mifepristone in response to the ruling. Without a uniform, national protection for the right to an abortion, women will be subjected to whatever decisions that ideological judges and politicians decide is right. These rights will be ever changing, and women living mere miles apart will be subject to vastly disparate treatment. Litigation will be ongoing, and the rights, safety, and health of women across the country will hang in the balance as a result.


*The views expressed in this article do not represent the views of Santa Clara University.


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