The Washington PostDemocracy Dies in Darkness

1 in 3 American women have already lost abortion access. More restrictive laws are coming.

Protesters at the Wisconsin Capitol in Madison on June 22 hoped to convince lawmakers to repeal a 173-year-old ban on abortions. The state has conflicting laws that leave the legality of abortion unclear, but Wisconsin clinics stopped providing abortions after the Supreme Court decision. (Todd Richmond/AP)

Two months after the Supreme Court overturned Roe v. Wade, about 20.9 million women have lost access to nearly all elective abortions in their home states, and a slate of strict new trigger laws expected to take effect in the coming days will shut out even more.

Texas, Tennessee and Idaho all have existing restrictions on abortion, but the laws slated to begin Thursday will either outlaw the procedure entirely or heighten penalties for doctors who perform an abortion, contributing to a seismic shift in who can access abortion in their home states.

At least 11 other states have banned most abortions, prohibiting the procedure with narrow exceptions from the time of conception or after fetal cardiac activity is detected, at about six weeks of pregnancy, with legislation known as “heartbeat” laws. Five more states have similar bans temporarily blocked by the courts. If those injunctions are lifted, abortion could soon be inaccessible for millions more — in total, 36 percent of U.S. women between the ages of 15 and 44 would be largely unable to obtain an elective abortion in the state where they live.

The rapid pace of change has shocked even the closest observers.

“I just thought there would be a little more time to help providers and patients cope with these changes,” said Elizabeth Nash, who tracks abortion legislation in the states for the Guttmacher Institute, a nonprofit research center that supports abortion rights. “It was very clear that that sort of grace period was not going to be provided.”

Advocates and doctors in favor of abortion rights fear that the newest trigger laws — which in Texas will carry a potential life sentence for doctors who perform an abortion — will have a chilling effect on helping people who either need an abortion because they are facing life-threatening complications or are trying to travel and get one elsewhere. The stiffer laws come as patients and providers navigate a confusing tangle of policies amid ongoing legal challenges that at times have made abortion accessible one day and completely illegal the next. Even more changes are on the horizon as lawmakers in South Carolina and West Virginia consider new bills during special legislative sessions.

Patients in states such as Tennessee have rushed in recent days to try to make last-minute appointments before they lose access to abortion completely — some only to be turned away, ineligible for an abortion because of the state’s “heartbeat” law.

Kaydria, a 28-year-old from Jackson, Miss., started researching the changing abortion laws as soon as she found out she was pregnant in mid-August. With abortion already banned in her home state, she decided to drive three hours to Memphis.

She knew she’d have to hurry: On Aug. 25, all elective abortions would be banned there, too.

“I needed to go ahead and take care of it,” said Kaydria, who spoke on the condition that only her first name be used to protect her privacy. “I knew I didn’t have time.”

‘A very confusing landscape’

Roughly 14 states have bans outlawing most abortions, with varying exemptions and penalties for doctors. In all, nearly 21 million — about 1 in 3 girls and women in the United States between the ages of 15 and 44 — have lost access to the procedure, according to U.S. census data. The restrictions apply to both medication and surgical abortions.

The states that bar abortion from conception tend to be located in the South and the Midwest, including Alabama, Arkansas, Kentucky, Missouri and Oklahoma. Wisconsin has conflicting laws that leave the legality of abortion uncertain, but clinics stopped providing abortions in the state after the Dobbs v. Jackson Women’s Health Organization decision, effectively ending abortion within its borders. Georgia, Idaho, Ohio and Tennessee have bans that begin when fetal cardiac activity can be detected, which can occur before many people realize they are pregnant.

“This has been fast-moving and frightening,” said Melissa Grant, chief operations officer for Carafem, which operates abortion clinics in several states, including Tennessee, Georgia, Illinois and the D.C. region.

Antiabortion advocates were jubilant after the high court overturned Roe and are now setting their sights on building on their victory, including measures that would prevent out-of-state travel, remove exemptions for victims of sexual assault and provide legal rights for fetuses.

“When you say, ‘Hey, we want to protect all of our unborn residents,’ you want to make sure that that is effective,” said Peter Breen, the vice president and senior counsel for the Thomas More Society, a conservative legal organization aiming to help state GOP lawmakers enact further restrictions.

Millions more live in states where abortion access is uncertain as legal challenges wind their way through the courts and lawmakers consider passing new laws. In some states, abortion access has changed day by day as courts have blocked and unblocked bans.

North Dakota has an abortion ban from conception that has been temporarily blocked by the courts, but it could go into effect Friday if it is not enjoined this week. South Carolina has a six-week ban that was in effect for weeks until the state Supreme Court temporarily blocked it from being enforced last Wednesday. That same day, a district court judge reinstated a 1973 law that bars abortion after 20 weeks in North Carolina, although the state remains one of the few with first- and second-trimester abortion access in the South, where most of its neighbors have outlawed the procedure.

Three new laws triggered by the Supreme Court’s decision to strike down Roe that are slated to take effect Thursday in Texas, Tennessee and Idaho will stiffen penalties for abortion providers or restrict access even further.

Immediately after the Supreme Court’s decision in June, abortion was almost completely outlawed in Texas under a statute that predated Roe, and clinics closed their doors to patients.

On top of those restrictions, Texas legislators passed a trigger law in 2021 that makes providing an abortion a first-degree felony, which can result in a life sentence, and raises the civil penalty to a $100,000 fine. There are no exceptions for rape or incest in the Texas abortion ban.

“The criminal penalties will further chill the provision of care to women who need it,” said Elisabeth Smith, director of state policy and advocacy for the Center for Reproductive Rights, a legal advocacy organization that represented the clinic at the center of the Supreme Court case.

In Idaho, the state’s “heartbeat” ban on abortion went into effect this month. Now a near-total abortion ban is expected to kick in, further limiting access and imposing criminal penalties of up to five years’ imprisonment on providers. The ban slated to take effect Thursday includes exceptions for rape, incest and the life of the pregnant person — but not when their health is at risk.

The Justice Department has filed a lawsuit against the ban, arguing that the state’s law violates a federal requirement to provide medical care when a patient’s life or health is at stake. A federal judge said he would issue his opinion by Wednesday.

A federal judge expressed concerns that Idaho's abortion ban could discourage doctors from providing emergency care when a pregnant person’s health is at stake. (Video: Reuters)

“It’s a very confusing landscape,” said Caitlin Gustafson, a family physician and abortion provider in rural Idaho, who is suing the state over three different abortion laws that took effect at different times after the Supreme Court struck down Roe.

Tennessee will also see a trigger law completely ban abortion Thursday, with no exception for victims of rape or incest.

‘A generational push’

For some antiabortion activists, the current restrictions in many states do not go far enough, and they are itching to narrow the limited exceptions for victims of rape and incest as soon as politically possible.

“I drafted the heartbeat law, and it was a tough pill to swallow when we had to make that compromise to create the exceptions for rape and incest,” said Blaine Conzatti, the president of the Idaho Family Policy Center. “And so that’s something that I would like to fix in the future.”

Yet he acknowledged that doing so will probably be an uphill battle — even in Idaho, where Republicans control both the governor’s office and the legislature.

“I think that’s going to be a generational push,” Conzatti said, adding that it will take time to convince some reluctant lawmakers as well those who belong to the Church of Jesus Christ of Latter-day Saints, a key constituency that supports some exceptions in the cases of rape and incest.

Republican state Rep. Brent Crane, chairman of the Idaho House committee overseeing abortion legislation, said he isn’t planning on pushing bills further restricting abortion in the upcoming session, believing that the state needs to move “slowly and deliberately.” He said he’s comfortable with the current exemptions in the law and predicted that if removing the exception for rape and incest were brought up, it would not pass his panel.

Even in some Republican strongholds, antiabortion lawmakers and activists have run into opposition in trying to push through no-exemption bans, finding there is a limit to how far even many conservative voters are willing to go. This month, voters in Kansas resoundingly rejected a ballot measure that would have stripped protections for abortion from the state constitution. Days later, Nebraska’s governor announced that he would not call a previously anticipated special session to pass an abortion ban.

Lawmakers in West Virginia and South Carolina are pushing new bans in legislative sessions that could stretch into late summer. Republicans in those states are bitterly debating whether those bills should include exceptions for victims of rape or incest.

Meanwhile, a slew of new restrictions in several states is probably coming before the end of the year.

Next month, Indiana will join the states with near-total abortion bans after legislators passed a law set to take effect Sept. 15. That ban includes exceptions for rape, incest or lethal fetal abnormality, or to save the life of the pregnant person.

Several states, including South Carolina, Utah, Wyoming, North Dakota and West Virginia, have pending court cases that will decide the fate of abortion bans that were triggered by the fall of Roe. If all of those bans prevail, at least 23.2 million women will live in a state where abortion is banned from conception or around six weeks.

‘Get here now’

As soon as Roe was overturned, staff members at Choices, an abortion clinic in Memphis, began preparing for the courts to lift an injunction on a six-week abortion ban, a change they knew could come at any time and would outlaw most abortions in Tennessee. Within hours of the Supreme Court decision, staff started calling patients scheduled for the following week, urging them to get to the clinic as soon as possible.

“They told me, ‘Get here now,’” said Jacretia Porter, a 24-year-old who had an abortion scheduled a week after the Dobbs decision. “They didn’t know how much longer they’d be able to do abortions.”

Porter immediately drove to the clinic, where she saw many other women who had received similar calls that morning. The other patients looked just as she felt, Porter added: “rushed, overwhelmed and super confused.”

While Porter was able to get her abortion that day, hundreds of other patients have been turned away at Choices and other clinics in Tennessee since the six-week ban took effect on June 28. Over the last seven weeks, patients have experienced “a lot of shock and anger,” said chief executive Jennifer Pepper — feelings that will only intensify when the procedure is banned altogether.

“For the first few weeks, there was not a time I left [the clinic] when I didn’t see a patient upset on the porch,” Pepper said.

After the state’s total ban goes into effect Thursday, abortions will be allowed only to save the life of a pregnant patient, such as in the case of an ectopic pregnancy, or to “prevent serious risk of substantial and irreversible impairment of a major bodily function.” Doctors and advocates worry that the law’s vague language will lead to potentially costly confusion.

Kaydria arrived at Choices on a recent Wednesday in August, only to find out she was already too far along to receive an abortion in Tennessee. The staff handed her a piece of paper with a list of abortion clinics in Illinois.

The closest option was more than seven hours from Kaydria’s home in Mississippi.

Angry and frustrated, Kaydria said lawmakers shouldn’t “have the right” to decide whether she gets an abortion, adding that “women aren’t breeding machines.” Already a mom, she said she used to live paycheck to paycheck and only recently began to feel on solid ground financially. By having another child, she said, she would be taking “10 steps back.”

Sitting outside the clinic, she resolved to start calling the numbers on the list that evening. She would have to find another babysitter and ask to take another day off work.

But first, a three-hour drive home.

Caroline Kitchener reported from Memphis.

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