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Ethical Considerations for Restrictive State Policies with Medication Abortion

By: Kalani Phillips, MPH, CPH


For decades, our nation has grappled with a difficult question: What degree of control should pregnant women have over their bodies? While abortion was legalized in 1973, this medical procedure remains incredibly controversial. From 2011 to 2019, states across the nation have passed approximately 483 laws restricting abortion access, accounting for roughly 40% of all state abortion restrictions since Roe v. Wade (1973). In 2021 alone, there were 108 abortion restrictions enacted, more than any other year previously.


It is critical that Congress seek to pass federal policy regarding access to medication abortion given the disparities in access are largely the result of a patchwork of restrictive policies enacted by individual states. A clear federal policy that increases access to medication abortion is direly needed, especially considering the leak of a Supreme Court draft opinion that attacks the constitutional basis for the right to abortion care and seeks to give states full leeway to restrict or ban abortion. This is particularly problematic given an individual’s right to abortion care also implicates ethical considerations associated with compelling someone to give birth even when they do not have the resources to care for a child after pregnancy. If states are given the power to fully ban abortions, already strained foster care systems will be impacted even further, and existing social support programs will likely be inadequate to assure good quality of life for children born into low socioeconomic status families following unintended pregnancies.


The primary counterarguments to increasing access to abortion care are tied to religious precepts concerning when an embryo should obtain the full protections of any other human being. Using a religiously derived conceptualization of human life, however, is at odds with the U.S.’s long-held stance of separating church from state. Moreover, prioritizing an embryo’s existence at the expense of the person carrying it and without regard to the consequences of forcing an individual to endure an unwanted pregnancy raises significant ethical concerns.


State Policies

Although the Supreme Court recognized a woman’s right to abortion in Roe in 1973, the limits of that right have been the subject of heated debate ever since. The issue returned to the Supreme Court in 1991, when the Casey decision curtailed a woman’s right to abortion. While Roe held that states had no interest in overriding a woman’s decision to terminate a pregnancy in the first trimester, Casey overruled Roe on that point, resulting in states gaining the power to regulate abortion care at all stages of pregnancy so long as any policies enacted do not impose an “undue burden” on the choice to get an abortion. The ultimate result of these decisions is that, although a woman has a constitutional right to an abortion, states are permitted to enact policies that make exercising that right significantly more challenging. And states have done just that.


Various state policies act as additional barriers to accessing abortion across the U.S. These policies are requirements such as parental notification or consent for minors, mandated counseling, mandated waiting periods, limitations on public funding, mandated ultrasound requirements, and mandated provider and clinic requirements. Such regulations are not based on science and have been deemed medically unnecessary if seeking an abortion in the first trimester of pregnancy. Furthermore, states across the nation have differing policies, laws, and requirements in place in order to obtain abortions. These differences make it increasingly difficult to navigate the legal framework of laws across different states.


Unnecessary and onerous state abortion regulations act to discourage individuals from obtaining an abortion by making it increasingly difficult to get one. Though designed with the intention to preserve life starting from conception, these policies simply decrease access to healthcare and result in poorer health outcomes for both mother and child after birth. Research shows that states with the highest abortion restrictions have implemented fewer policies and programs to support maternal and child health, highlighting an inverse relationship between decreased abortion access and maternal and child health outcomes. In addition, research found that South Carolina, a state with many abortion restrictions, had some of the worst maternal health outcomes in the country, where maternal mortality had increased by 300 percent in 2015. The inverse relationship between restrictive state policies and maternal health outcomes signals that these regulations are poor vehicles to improve the health and wellbeing of any individual or community.


The current array of state policies places unnecessary obstacles for individuals seeking to exercise their constitutional right to abortion. Unfortunately, however, the problem of inconsistent and confusing state policies may only get worse in the coming years. In May 2022, a draft Supreme Court opinion was leaked to the public that criticized the constitutional underpinnings of Roe, and argued that the case had been wrongly decided. If the opinion becomes law as drafted, states would gain significantly more power to curtail abortion access, including by banning and criminalizing abortions. A uniform federal policy on providing access to abortion care is needed to avoid disparate health outcomes tied to the political tendencies of individual states.


Ethical Considerations

Limiting abortion access is known to contribute to poor health outcomes and increase rates of unsafe abortion. Conversely, increasing access is known to have improved birth outcomes long after pregnancy and may be linked to increased quality of life for children. For instance, one study found that limits on public funding for abortions as well as the number of policies mandating parental notification or consent among minors seeking abortions are inversely associated with the number of infants given up for adoption. In fact, the study concluded that increased abortion access has been found to decrease the number of children being put up for adoption. As these findings underscore that access to abortions can improve both maternal and child health outcomes, it is therefore imperative that a clear, federal policy is made to do so. And as discussed earlier, states with more abortion restrictions tend to have implemented and invested less in maternal and child healthcare programs to improve health and well-being in the long term. The unfortunate and likely result is that these states will continue to see increases in maternal and infant mortality, increases in the number of children being put up for adoption, and poorer health outcomes for vulnerable populations.


While we live in a country with strong freedom of religion protections, there is also a long-held policy of the separation of church and state. It is entirely acceptable for an individual to make a personal decision to never terminate a pregnancy based on their sincerely held religious beliefs. However, it is entirely different to use the power of the law to prevent others from making a different decision for themselves. The separation of church and state mandates laws are not used to advance the positions of any one religious group, yet passing laws based not on science, but on personal religious views, has persisted throughout our country’s history to the detriment of many in vulnerable situations. Given that abortions have proven to be one of the safest medical procedures6 and medication abortion specifically has been proven effective and medically safe, there does not appear to be a scientific argument against improving access. Although religious beliefs should be respected, these perspectives should not be used to dictate the personal reproductive decisions of others.


As states have increasingly enacted restrictive abortion policies, these effects have had varying impacts on individual access. Restrictions such as mandated counseling, waiting periods, ultrasounds, and insurance costs add unnecessary barriers to access. Moreover, the difference in state policies across the nation make it difficult for any individual to navigate the complex framework of laws regulating abortion. Ultimately, if this issue is left up to individual states, abortion access will undoubtedly continue to be restricted further. It is clear a national policy increasing access to abortion is critically needed.


Sources:

Steinbock B. Hastings Center Bioethics Briefings: Abortion. The Hastings Center. Published May 4, 2022. https://www.thehastingscenter.org/briefingbook/abortion/


State Facts About Abortion: Ohio. GUTTMACHER INSTITUTE. Published May 2022. https://www.guttmacher.org/fact-sheet/state-facts-about-abortion-ohio


Upadhyay UD, McCook AA, Bennett AH, Cartwright AF, Roberts SCM. State abortion policies and Medicaid coverage of abortion are associated with pregnancy outcomes among individuals seeking abortion recruited using Google Ads: A national cohort study. Social Science & Medicine. 2021;274:113747. doi:10.1016/j.socscimed.2021.113747


Aiken ARA, Romanova EP, Morber JR, Gomperts R. Safety and effectiveness of self-managed medication abortion provided using online telemedicine in the United States: A population based study. The Lancet Regional Health - Americas. Published online February 2022:100200. doi:10.1016/j.lana.2022.100200


Requirements for Ultrasound. GUTTMACHER INSTITUTE. Published April 1, 2022. https://www.guttmacher.org/state-policy/explore/requirements-ultrasound


Ravi A. Limiting Abortion Access Contributes to Poor Maternal Health Outcomes.; 2018. https://www.americanprogress.org/article/limiting-abortion-access-contributes-poor-maternal-health-outcomes/


Bitler M, Zavodny M. Did Abortion Legalization Reduce the Number Of Unwanted Children? Evidence from Adoptions. Perspectives on Sexual and Reproductive Health. 2003;34(1):25-33.


Thompson T, Seymour J. Evaluating Priorities: Measuring Women’s and Children’s Health and Wellbeing against Abortion Restrictions in the States.; 2017. https://www.reproductiverights.org/sites/default/files/documents/USPA-Ibis-Evaluating-Priorities-v2.pdf







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