The Supreme Court is poised to end the era of Roe. In a leaked draft of a majority opinion, Supreme Court Justice Samuel Alito struck down Roe v. Wade, the 1973 ruling that guaranteed constitutional protections of abortion rights. What would happen to abortion rights in its absence? Which states would shutter their clinics? Which states might expand protections? How does the growth of nationwide access to abortion pills fit into all of this? And why was the draft leaked in the first place? This podcast answers all of those questions and more, with two guests: Melissa Murray is a professor of law at New York University, and Margot Sanger-Katz is a domestic correspondent for The New York Times. Part of the conversation with Margot is excerpted below.
Derek Thompson: So I want to talk to you about this leaked decision from Justice Samuel Alito and how it’s actually going to affect Americans lives—what an America without Roe would look like. I wanna start with this. If Roe v. Wade is indeed overturned, where is abortion likely to become illegal?
Margot Sanger-Katz: So we don’t know exactly. There are, you know, 25 to 26 states that look like they are poised to ban abortion almost entirely. There are 13 states that have passed these special kind of laws known as trigger laws that basically say Roe if overturned, then abortion is banned. So those are kind of like waiting to be tripped by the decision. There are also a bunch of states that have old laws from back before Roe v. Wade. So abortion was illegal before then the Supreme Court said, no, there is a constitutional right to abortion everywhere—and those states never repealed those laws. They’ve kind of been just hanging out there in the background. Those could get reactivated in a number of states. And then there are quite a few states that have recently passed new abortion bans. Basically, they know that the Supreme Court is going to rule on this soon and they want to be ready for it.
Those laws also are sort of ready and waiting. Depending on how you interpret those laws and the various legal vagaries of them, it looks like about half the states are getting ready to ban abortion. They’re not spread out randomly around the country. They’re really geographically clustered. So pretty much all the states in the South, except for Florida. Almost all of the states in the Midwest, with the exception of Illinois, and quite a lot of the states in the Great Plains. So you will see, you know, large swaths of the country, big regions, where there just aren’t any abortion clinics at all.
DT: Right. I’m looking at a map of the states that are most likely to be affected by the end of Roe v. Wade, in terms of they would suddenly become illegal for women to have abortions. For the most part, it kind of looks like an upside-down T. You have the line coming down from Michigan through Alabama, and then it extends as a band along the South from Texas through Georgia, into the Carolinas. That’s really where it would be hardest, if not impossible, to get a legal abortion. I want to stop here and, and point out that some people in a world without Roe v. Wade would try to travel across state lines to get an abortion, but for someone who lives in, say, Mississippi, it looks like it might require a three-hour drive, a 10-hour drive to get to a state or an area that would have a legal abortion. Is that right? In some places in the South you would just have to travel very, very far in a world without Roe v. Wade in order to get a legal abortion?
MSK: I think that is really an effect that is hard to understand until you look at the map. Most women that get abortions now are poor. And we know from research on when abortion clinics have closed in the last couple of years that, for poor women, the further away the nearest clinic is the less likely they are to get there. And this is for reasons that are kind of predictable. Maybe they don’t have money for gas or for a plane ticket. They might not have access to a car, may not have a flexible job that allows them to take time off money for a hotel room. They may not have access to childcare if they have to be gone for a long time. And so what that means is that the further these women have to travel, the less likely they are to actually get to a place where they can have an abortion. Richer women in general tend to have more resources.
You know what I mean? If you have the ability to fly to a state like California or New York, probably this is not gonna change a lot for you. It will be inconvenient. It will be expensive. And it might be hard to get an appointment in some of those states because they’re gonna be women like you from all over the country who may be flooding into the states that still have legal abortion, but the real barriers are going to be for these poorer women who have fewer resources and for whom travel is a much bigger hurdle.
DT: The typical patient, the typical American who gets an abortion you say is already a mother is in her late 20s, attended some college has a low income, is unmarried, is having her first abortion and lives in a blue state. All that comes from the article that you just published this morning. Which of those demographics were most surprising to you? There were a couple that were kind of surprising to me in terms of who the typical patient is. What surprised you the most when you learned that?
MKS: I have to say a bunch of them actually were. I think that the, you know, there are certain stereotypes that circulate about who has abortions. I think there’s a sense that many people have abortions again and again, that’s actually relatively rare. There are a lot of women who just have one abortion, their abortion is their first abortion. I do think that there is a sense that very young women, teenagers, are the people who are having abortions. That doesn’t really seem to be true. It’s a slightly older woman, still younger women, but not children—people who are already mothers, they understand what it is to carry a pregnancy, to have a child and to care for a child, what that means kind of emotionally, financially, logistically.
DT: To me, the most surprising thing is that the typical abortion patient is already a mother. I don’t think I ever would have guessed that. I want to go to something else that you mentioned, which is the question of how the number of abortions in the U.S. might change as a result of the end of Roe v. Wade. To a certain extent, we can look at this question … by looking at Texas. Texas passed an infamous law that essentially deputizes Texas citizens to bring lawsuits against anyone who has an abortion or anyone who assists in an abortion. And you write that abortions at Texas clinics fell by half, but the overall decline of abortions was only around 10 percent or has only been around 10 percent in Texas. Tell me a little bit about that. Why have abortions only declined 10 percent in a state where as far as I understand it, you, you cannot find a clinic that will provide a legal abortion?
MKS: You can get an abortion in Texas up to around six weeks of pregnancy. So if you’re very early in your pregnancy, you can still get an abortion in Texas, but about half of the abortions no longer were happening in Texas. And I think this really shows how, first of all, that there’s a lot of demand. Women who want to have an abortion, they’re going to work pretty hard to find a place where they can get it. It shows how there is this kind of cross-state travel that happens, and that can’t happen. The third thing we found in this story that I think was really interesting and I think is perhaps the biggest harbinger of what we may see in the future is that we saw a lot of women who lived in Texas who were ordering abortion pills on the internet from overseas medical providers.
The abortion pill has been approved by the FDA. A lot of women, about half of women early in pregnancy, when they go to get an abortion, they’re not having a surgical procedure in a clinic. They talk to a doctor, they get a prescription for a medicine. They take the pills at home and they have essentially a miscarriage in their home. This is a common, normal sanctioned medical process, but it turns out that you can also get those pills on the internet from an Indian pharmacy that will mail them to your home. And so you’re not necessarily getting care from a U.S. doctor. You’re not necessarily getting drugs that are regulated by the FDA that come through some sanction process. But there is a lot of evidence that when people order these pills on the internet and labs test them and they seem to be authentic for the most part. People aren’t getting phony pills, they aren’t getting expired pills. There is a kind of growth in organizations like the one that we tracked called Aid Access, where they hook you up with a real medical professional, just someone not in the United States. So this organization connects women in the United States with doctors in Europe who ask them some questions. And then if they think that they would be a good candidate for medical abortion, they make sure that they get these pills from India.
This excerpt has been lightly edited for clarity.
Host: Derek Thompson
Guests: Margot Sanger-Katz and Melissa Murray
Producer: Devon Manze