Abstract

Excerpted From: Rachel Rebouché, The Public Health Turn in Reproductive Rights, 78 Washington and Lee Law Review 1355 (Fall, 2021) (372 Footnotes) (Full Document)

On his first day in office, President Biden signed seventeen executive orders, several of which addressed two pillars of the Administration's agenda: to reduce income inequality and root out racial discrimination. Abortion access relates to both of those goals, though it is seldom described as an issue of economic and racial justice in public discourse. The Biden Administration's press release on the anniversary of Roe v. Wade nodded toward the connection between abortion access and health, though the statement did not use the word “abortion” once.

The silo of abortion within health and economic policy is the result of varied and complex factors. To name just a few: there is the tenacity of an adversarial model of abortion rights, pitting pregnant people against fetal personhood; there is a deep debate about the existence and nature of constitutional protection for abortion; and there is stigma and secrecy attached to reproductive decision-making, sex, and pregnancy. The result is what scholars have called “abortion exceptionalism” or, as defined by David Cohen and Carole Joffe, “the idea that abortion is treated uniquely compared to other medical procedures that are comparable to abortion in complexity and safety.”

Barriers to abortion services, however, create serious public health problems because they entrench economic and racial inequality. Three-fourths of people who terminate pregnancies are poor or low-income (as defined by federal poverty levels), and a majority of those people report their chief reason for ending a pregnancy is an inability to afford the costs of raising a child. This should not be not surprising, given the financial insecurity that marks the lives of an increasing number of people in the United States. Most abortion patients are also people of color. That, too, reflects broader disparities: race and income align because of the effects of institutional and structural racism.

When people cannot obtain abortion care, they incur social, financial, and physical costs that are difficult to bear. Those costs have long-term effects that perpetuate cycles of disadvantage and subordination. The COVID-19 pandemic has amplified those costs as made plain by widespread unemployment, compounded caregiving responsibilities for families, and an already overstretched healthcare system.

Public health research has highlighted the consequences of abortion restrictions for individuals' and the nation's health. Numerous studies, many generated in the past ten years, demonstrate the short-term, long-term, and cumulative health effects of anti-abortion laws. This research largely responds to state laws that target providers and facilities and frequently lead clinics to shut their doors. For example, quantitative and qualitative studies have measured the number of miles between remaining clinics after a legal restriction takes effect, and, in so doing, trace the ripple effects of increased cost and delay. Courts, including the U.S. Supreme Court, have cited this research in striking down facility and provider restrictions as unconstitutional.

The type of evidence that courts cite has expanded to include abortion restrictions' impact on health disparities, which courts have historically ignored or minimized. An increasing number of courts, however, have looked beyond individual-level harms to identify health burdens on populations of patients and to analyze the lived experience of delayed or denied abortion care. American College of Obstetricians & Gynecologists v. FDA (ACOG v. FDA) illustrates the broader purposes health research serves.

In that case, the U.S. District Court for the District of Maryland suspended an FDA policy requiring patients to pick up the first drug in a medication abortion from a health care facility for the duration of the COVID-19 pandemic. Medication abortion is a two-drug regimen taken over twenty-four to forty-eight hours before ten weeks of pregnancy. An immediate effect of the district court's ruling was to open new avenues for the remote delivery of abortion care. The district court's opinion detailed various burdens of in-person dispensation, starting with the health risks for patients visiting a clinic in the midst of a pandemic. The court held that in-person collection of a demonstrably safe drug that patients take at home posed needless risks of COVID-19 exposure and logistical hurdles. Most significantly, the court's decision captured a core problem with the law: the FDA's rule penalizes people who already live with inadequate resources, and it exacerbates financial and other stress. In short, requiring in-person collection is irresponsible health policy.

Though the district court relied on extensive evidence and public health expertise, the Supreme Court was not persuaded by the same factual record. In January 2021, the Court stayed the district court's injunction pending appeal. Justice Sotomayor wrote a strong dissent, which relied heavily on the district court's findings, calling the FDA's exceptional treatment of medication abortion “unnecessary, unjustifiable, irrational” and the effect of the rule “callous.”

The Supreme Court's order, however, did not prove to be a roadblock in the path forged by ACOG v. FDA. While the case was before the U.S. Court of Appeals for the Fourth Circuit, the FDA suspended the in-person restriction for the life of the pandemic and announced it will reconsider the regulation of the first drug in a medication abortion. The FDA grounded this decision in evidence of medication abortion's safety and the efficacy of remote care.

Given the dozens of abortion cases working their way through the federal courts, judges will apply the constitutional test for abortion rights--the undue burden standard--for an unforeseeable (though potentially short) future. Public health evidence invites judges to develop factual records that account for the burdens on patients' health and lives. To be sure, Chief Justice Roberts's doctrinal formulation of the undue burden standard in the recent abortion case, June Medical Services v. Russo, discounts whether an abortion restriction actually protects patient safety and defers to a state's reasons for passing a law. Yet even the Chief Justice's formulation of the undue burden test does not entirely abandon an assessment of whether a restriction imposes significant obstacles to services.

As the ACOG case illustrates, lower courts have begun to cite evidence demonstrating the relationship between inaccessible abortion and the country's health disparities. But drawing connections between law and health outcomes requires an understanding of the many ways that law entrenches inequality. This Article shows that the reasoning in ACOG draws on the social determinants of health--improving the conditions under which people live, work, and learn emphasizes abortion's role in the health ecosystem. Indeed, framing abortion access as a public health issue, rather than only a right, becomes all the more pressing if the United States lacks a federal constitutional right to abortion, which could become a reality in 2022.

A social-determinants framing invites on-the-ground interventions as well as federal and state policies that open avenues to care. ACOG v. FDA underscores that people need not (and often do not) depend on traditional means of obtaining abortion services. After the district court's decision in July 2020, providers and advocates mobilized quickly, as many sectors of the healthcare industry did, to provide care through telehealth. By June 2021, telemedicine for abortion was offered in twenty-one states. Permitting healthcare providers to administer care remotely or pregnant people to self-administer abortion with minimal professional intervention has changed the map of abortion access in ways that will outlast the pandemic.

The contribution of this Article is to highlight the role of public health research in shaping the future of abortion access and the role of abortion law in contributing to health disparities and inequalities. It shows that strengthening the legal and practical infrastructure for teleabortion and self-managed care can respond to the challenges of navigating a country with divided and regionally-concentrated legal permission for abortion.

This Article is organized in three Parts. The first Part analyzes how recent court decisions have changed the undue burden test while relying on public health research. The second Part offers examples of public health research concerning abortion restrictions' effect on patients, populations, and the public at large, with the latter reflecting on how the pandemic has influenced the reception of that evidence. The last Part considers two scenarios--courts' application of a narrow undue burden test and the disappearance of constitutional abortion rights altogether. In conclusion, this Article explores the public health community's support for teleabortion and, to a different extent, self-managed abortion, which depends less on constitutional arguments and more on policy innovation, social movements, and political leadership.

[. . .]

U.S. abortion law, politics, and practice are approaching an important pivot point that could affect the reproductive health and wellbeing of the next generation or more. It is unclear how things will work out in the terrain of national politics, given the new Biden Administration, and in judicial decisions, given the confirmation of Justice Barrett. But something equally important is also happening. A new emphasis on public health evidence has reinforced essential links among abortion access, race, and class. Some evidence of this transformation can be seen in events leading up to the FDA's review of the restrictions on medication abortion. One can already see the influence of new regulatory contexts and new categories of supportive evidence--even sometimes with respect to decisions of the Supreme Court and in the factual records of district courts.

The attention to the links between abortion access and inequality has been supported by the work of political activists, public health researchers, and practicing lawyers. Though not blind to the obstacles and opposition ahead, this Article endeavored to tell how those connections have been made visible and why they can inspire legislative and community change. The future of abortion discourse and practice is unclear, but, this Article argues, abortion care will survive despite the decisions of the Supreme Court and the formidable anti-abortion energies of many states.

Interim Dean, James E. Beasley Professor of Law, Temple University School of Law.