Protecting and Advancing Women’s Health and Rights Post-Roe Era Through Policy

Introduction

An abortion is the termination of a pregnancy by the removal of a human embryo or fetus. Medical abortions can be safely obtained with U.S. Food and Drug Administration (FDA)-approved medications, such as misoprostol or mifepristone, in the first trimester of pregnancy (Tufa et al., 2021). Surgical abortions can also be safely obtained though suction aspiration in the first trimester, or dilation and evacuation in the second trimester of pregnancy (Tufa et al., 2021). Safe medical and surgical abortions are most commonly provided by licensed Obstetrician-Gynecologists in family planning clinics.

While abortion laws and regulations have a tumultuous history throughout the world, the United States’ Supreme Court federally legalized abortion in Roe v. Wade (1973). This ruling established a new three-part standard for abortion rights and state interference. It determined a women’s right to have an abortion without governmental interference until fetal viability. Once fetal viability was obtained, under the ruling of Roe v. Wade, the state had a compelling interest to regulate abortive procedures if the regulation contributed to the preservation and protection of the maternal health. This was founded under the Fourteenth Amendment which noted that a childbearing individual had the right to decide to bring a pregnancy to term. This ruling was reaffirmed in Casey v. Planned Parenthood of Southeastern Pennsylvania (1992), which replaced the three-part standard with the “undue burden” test.

Since the establishment of Roe v. Wade (1973) , medical and surgical abortions have become a popular and safe option for individuals desiring to terminate a pregnancy. Research suggests that one in four childbearing individuals will undergo an abortion before the age of 45 due to environmental, biological, and psychosocial reasons (Jones & Jerman, 2017). Posed health risks, financial or emotional strain, and partner-related concerns are the most reported factors contributing to the desire to terminate a pregnancy (Chae et al., 2017; Holmes et al., 1996). Unfortunately, lower income families and racial and ethnic minorities more commonly experience these stressors and utilize abortive services (Cohen, 2008). The ruling of Roe v. Wade (1973) increased access to safe abortive care for underserved populations. As a result, mortality due to abortion dropped rapidly from 40 million abortion-related deaths in 1970 to 8 million in 1976 (Cates et al., 1978). Since this time, research has continued to show that legal abortions have fewer risks than childbirth. One study found that 23% of births required cesarean deliveries, a major abdominal surgery, whereas fewer than 1% of suction curettage procedures required intra-abdominal surgery. This study, along with several others, suggest that an individual who carries a pregnancy to term is several times more likely to experience harmful complications than one receiving a safe, legal abortion (Bearak et al., 2020; Cates et al., 1978; Haddad et al., 2009; LeBolt et al., 1982; Pittman, 2012; Raymond & Grimes, 2012).

Despite the positive impact federal legalization of abortion has had, abortion in the United States still remains highly regulated at a state level (Kulczycki, 2022). This has led to unfair state restrictions that impact both the provisions of health care and access to abortion while also continuing to exacerbate health inequalities. In June 2022, the Supreme Court decision of Dobbs v. Jackson Women’s Health Organization (2022) highlighted the national divide in the ongoing battle of abortion rights. In June of 2022, the Supreme Court granted states the power to redirect the criminalization from the patient receiving care to the abortion provider and accomplices. This alternative will work to intimidate providers from fulfilling their moral and ethical obligations to their patients and act as a barrier to patient care.

Regardless of the safety makers and gestational age legality, abortions will continue to occur in the United States. Without federal codification of abortion rights, the Dobbs policy landscape provides a clear power shift to the states. The patchwork that remains will range from state codification of abortion rights to state prohibition of access to abortion. This article will present three alternative opportunities for states to aid in the promotion of women’s health for those living within state lines but also those who may seek access to care in neighboring states including the expansion of telehealth, access to abortion providers, and comprehensive sexual education.

Create Well-Defined Telehealth Guidelines and Expand Interstate Compacts

Telehealth, or the use of electronic information and telecommunication to distribute health services, has expanded individual access to specialized providers and facilities nationwide. This has included access to licensed abortion providers and family planning clinics for individuals who wish to receive abortive services. However, regulatory adaptations from the COVID-19 pandemic and rapid integration of telehealth produce ambiguity for the utilization of telehealth for abortive care in the future. To date, the FDA has relaxed regulations on the distribution of the oral abortive medication misoprostol. However, distribution guidelines for mifepristone are more complex due to safety concerns. Prior to the pandemic, the FDA required individuals to schedule an in-person appointment to directly obtain mifepristone from a medical provider, while misoprostol could be distributed through a retail pharmacy with a prescription. To reduce the risk of COVID-19 transmission, however, the FDA suspended the in-person dispensing requirement for mifepristone which allowed individuals to receive the medication through mail delivery and retail pharmacies with a prescription provided through a telehealth visit.

The suspension of the FDA’s in-person distribution requirement for mifepristone reduced an unnecessary barrier to care and allowed for individuals to utilize telehealth for abortive services. However, the rapid integration of telehealth without widespread and well-defined interstate medical compact poses additional challenges for the future use of telehealth in this specialty. The Interstate Medical Licensure Compact (Compact) have proven incredibly useful in state of emergencies as they accelerate the out-of-state licensing processes or allow licensed providers to practice under a single multistate, full-unrestricted, license. The Compact currently includes 34 states, the District of Columbia and the Territory of Guam (IMLC). But, only 19 states implemented long-term or permanent interstate compacts that permit licensed practitioners to provide various telehealth services to individuals in other states (Federation of State Medical Boards, 2022). The diversity within the Compact in regard to telehealth adds additional complexity when combined with abortive care regulations. Currently, only six states have completely banned the use of telehealth for medical abortions, and 13 states require the physical presence of the prescribing clinical when receiving the mifepristone (Anderson et al., 2021). A shift in state power would introduce many legal and ethical challenges for providers with the utilization of telehealth for abortive care. The diversity of state telehealth laws and lack of provider protection from states may present as a barrier to care for patients nationwide. Some states have attempted to protect their physicians from civil or criminal liability are unclear of the effectiveness of such laws—as their reach remains untested in the courts. (see, CA bills). For example, a new Missouri bill would allow private citizens to sue anyone who helps a Missouri resident have an abortion—including physicians in other states. However, health care professionals may be fearful of unintentional criminalization, leading to the complete termination of medical abortive prescriptions even in states where it is legal.

Telehealth and the adaptive federal guidelines have significantly decreased obstacles to abortive care. However, the current infrastructure requires additional clarity to prevent complete termination of medical abortive services nationwide due to fear of criminalization. The FDA should permanently suspend the enforcement of in-person dispensing requirement for mifepristone postpandemic. In addition, although untested states should still create laws that protect medical abortion clinicians who reside in their state from being prosecuted in other states. Finally, clear interstate compact guidelines should be made for medical abortion consultations via telehealth. By promptly addressing these current infrastructural gaps, legislatures will be on the forefront and can potentially mitigate the social injustice and possible increase in mortality that would occur with the overturning of Roe v. Wade.

Increase the Number of Abortion Providers Through Accreditation and State Law Revisions

Abortion providers have not been left out of the growing national physician shortage. A recent study found that nearly 90% of counties in the United States lack a residential abortion provider. The study also found that those living in rural areas rarely have a provider in their community that will perform an abortion (Jones & Jerman, 2017). This deficit may require individuals to wait longer in their pregnancy or travel farther distances to receive abortive services. This barrier places individuals at risk of exceeding state gestational age laws and acts as an undue burden. In addition, the current shortage coupled with many traveling patients has already inadvertently created barriers for local individuals obtaining abortive services by overwhelming local providers. With divided abortion laws, states with retained abortion access will likely become overburdened with a surplus of out-of-state individuals seeking care and hinder them from providing for those in their own region. However, accreditation councils and state legislatures can quickly solve the current burden and mitigate the consequences of differing abortion laws in the future. Obstetrician-Gynecologists most commonly manage abortive care; however, the American Academy of Family Physicians recognizes the termination of pregnancy up to 10 weeks’ gestation as an advanced core skill for family medicine physicians. In addition, advanced practice clinicians (APCs—NP, PA, Certified Nurse-Midwives) have been used in some states to provide first-trimester abortions (Weitz et al., 2013).

Despite this opportunity to expand abortion care coverage by type of provider, accreditation councils and state legislatures have not utilized these resources to their full effect. The Accreditation Council for Graduate Medical Education (ACGME) has yet to require integrated abortion training for family medicine residency programs. As a result, only 24 of the 461 accredited family medicine residency programs offer this training (American College of Obstetricians and Gynecologists [ACOG], 2014). When training is offered, it is generally a separate, opt-in opportunity. This hinders family medicine residents from obtaining a broad-spectrum skill set that could blunt the abortion provider shortage. In addition, only five states currently allow APCs to perform surgical abortions, at least 12 additional states allow them to provide medication abortion; suggesting a call for a change in state laws (Barry & Rugg, 2015; Jones et al., 2018).

Abortion access is an important health care necessity that is, unfortunately, not evenly distributed nationwide in its current state. With providers already limited and overwhelmed, accreditation councils should respond by mandating abortion training for family medicine residency programs through ACGME. In addition, state legislatures can contribute by expanding APC licensing laws to include medication abortion in the first trimester. Accreditation councils and state law revisions could reduce the current burden on abortion providers and create an infrastructure that is equipped to handle a supersaturation from differing state laws (Weitz et al., 2013).

Improve Comprehensive Sexual Education

The content of proper sexual health education within state laws and policies has been disputed over the last several years. Many have begun to advocate for an all-encompassing, comprehensive, curriculum addressing physical, mental, emotional, and social aspects of human sexuality to be taught in schools. A comprehensive sexual education curriculum provides medically accurate, age- and culturally- appropriate, unbiased content without promoting a particular religion (Guttmacher Institute, 2021; Rice et al., 2022). Research has shown that, when compared with other sexual education models, comprehensive sexual education models are more likely to decrease unwanted pregnancies and intimate partner violence (Oettinger, 1999; Zelnik, 1979). A prime example of risk factor reduction is seen with intimate partner violence. Individuals often seek abortive services out of concerned for their safety and the future of developing fetus (Pallitto et al., 2013; Roberts et al., 2014).

Despite significant research outlining the benefits of a comprehensive sexual education curriculum, sexual education statutes and regulations vary by state. Only 30 states and the District of Columbia mandate public schools to teach sexual education. Currently, eight states require abstinence to be stressed and nine states plus the District of Columbia require abstinence to be covered in their sexual education curriculum (Guttmacher Institute, 2021; National Association of State Boards of Education, 2019). Yet, when sexual education is taught in the public school system, the information shared is often unreliable and at odds with educational materials shared by sexual health organizations and established best practices. This, in turn, has impacted teen birth, unintended pregnancies, and domestic violence (Stanger-Hall & Hall, 2011). However, comprehensive sexual education programs have been proven to be highly effective in reducing the risk factors that are associated with those seeking abortive services. However, research has shown that abstinence-only education does not work in preventing pregnancy. Comprehensive sexual education works to prevent teen pregnancy and improve women’s health overall (Lieberman & Goldfarb, 2022).

The uneven distribution within the United States sexual education curriculum has impacted teen birth, unintended pregnancies, and domestic violence. However, comprehensive sexual education programs have been shown to not only reduce abortion risk factors but also shift cultural paradigms of sexual health, advance the state of sex education, and improve sexual and reproductive health outcomes in the United States. As a result, federal and state legislatures should push for Education and Access for Healthy Youth Acts which eliminates funding streams for abstinence-only-until-marriage programs and creation a standardization of comprehensive sexual education curriculum. This standardized movement by legislation has the potential to decrease the need for abortive care and create supportive, destigmatized environments for adolescents.

Conclusion

Access to the full spectrum of sexual and reproductive education and abortive health care is fundamental to the health of individuals, families, and communities. The Supreme Court ruling of Roe v. Wade in 1973 substantially added to the advancement women’s health by increasing access to safe and legal abortions on a federal level. While legislatures continue to work to protect and advance these significant gains and reduce health inequities seen within abortive care, current policies require modification to reach their optimal level of efficiency and effectiveness. Addressing the gaps within current legislation and education infrastructure is more likely to yield a rapid result given standing framework to combat the current barriers mentioned above. In addition, with the gains from Roe v. Wade now threatened in the United States and state laws dismantling more than a half century of protections in various ways, these revisions may also soften the rippling impact on vulnerable populations in the denigration of the entire infrastructure as we once knew.