Emergency Podcast: The Supreme Court Case that Threatens Roe

 On Monday, May 17th, the Supreme Court announced that they would hear a court case, Dobbs v. Jackson Women’s Health Organization (JWHO), out of Mississippi that seeks to ban almost all abortion at 15 weeks or later. Dr. Daniel Grossman, obstetrician/gynecologist, Professor in the Department of Obstetrics, Gynecology, and Reproductive Sciences at the University of California San Francisco, and Director of a policy-based research program within the OB/GYN Department entitled Advancing New Standards in Reproductive Health (ANSIRH), sits down with us in this emergency podcast episode to discuss the gestational bans at the center of the case that strikes at the heart of Roe.

The Supreme Court decision in Dobbs v JWHO could open the option for individual states to impose abortion bans before fetal viability, —a core tenant that is explicitly protected in the 1973 Roe v. Wade decision. 15 weeks is a significant amount of time before viability (which can range 24 to 28 weeks after a person’s last menstrual period). Gestational bans have become increasingly common across the U.S., acting as yet another time-limit on people’s access to get abortion care. The majority of patients that are most impacted by these restrictions are Black, indigenous, people of color, living at or below the federal poverty level, young, and/or LGBTQ. 

This blatantly unconstitutional ban was passed with the goal of getting in front of the Supreme Court, which now has a 6-3 conservative majority. The Justices will have the case presented to them next session, which begins in October.

Links from this episode

Dr. Daniel Grossman on Twitter
ANSIRH on Twitter
ANSIRH on Facebook

Transcript

Jennie: Welcome to rePROs Fight Back, a podcast where we explore all things reproductive health, rights and justice. I'm your host, Jennie Wetter, and I'll be helping you stay informed around issues like birth control, abortion, sex education and LGBTQ issues and much, much more-- giving you the tools you need to take action and fight back. Okay, let's dive in.

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Jennie: Welcome to this week's episode of rePROs Fight Back. I'm your host, Jennie Wetter, and my pronouns are she/her. Hi, repros, and welcome to an emergency bonus episode. So y'all, I'm sure you have seen that's the Supreme Court plans to take on a big abortion case next term, don't worry. We have you covered. That is what we are going to talk about in today's emergency episode. But before we get there, I thought I would take a minute to just highlight, you know, I know like a lot of you, I was anxious and stressed and angry and all the things. So, what I always do when that comes up is I do some rage donating. So right now is a really great time to donate to your local abortion fund. And if you don't know who they are, National Network of Abortion Funds has a great resource on their website where you can find your local abortion fund. So, I made sure to take time to donate to my local abortion fund and to a couple in the South so they could use it right now. And I think, you know, the Supreme Court case really just highlights the need to make sure that everybody needs access to abortion is able to get it. And abortion funds, go a long way to helping those who can't afford access to abortion. So, I think that, you know, donating to your local abortion fund, it made me feel a little better and hopefully it can make you feel better. So, with that, let's turn to this emergency episode. I am super excited to share with y'all-- I got to talk to Dr. Daniel Grossman an OB/GYN and professor at the University of California, San Francisco, and the Director of the Advancing New Standards in Reproductive Health program. We had a great conversation. We talked about all the case and why all these gestational bans are unnecessary and so many other things related to reproductive health. And I hope you enjoy our conversation.

Jennie: Hi, Dr. Grossman, thank you so much for being here today.

Dr. Grossman: Thank you so much for inviting me.

Jennie: Before we get started. Do you want to take a quick second and introduce yourself and include your pronouns?

Dr. Grossman: Sure. My name is Daniel Grossman. My pronouns are he/him. I am an obstetrician/gynecologist. I'm a professor in the Department of Obstetrics, Gynecology and Reproductive Sciences at the University of California, San Francisco, and I direct a policy-oriented research program within the OB/GYN department called Advancing New Standards in Reproductive Health or, ANSIRH.

Jennie: So, I am so excited to have you on today to talk about the big Supreme Court case. Do you maybe want to get started and talk a little bit? What is this case that the Supreme Court decided to hear next fall?

Dr. Grossman: So, this is a case in Mississippi that it seems like the court's been kind of debating for a while and looking at it and deciding whether it's going to take it. And then it just decided to take the case. And this case would essentially ban pretty much all abortions at 15 weeks or later.

Jennie: Okay. To me it's really scary. It seems like it's striking right at the heart of Roe because it would open up the flood gates to pre-viability abortion bans.

Dr. Grossman: Yeah. You know, I'm not a lawyer, but that's what the lawyers are so concerned about; that this is kind of one of the central concepts in these protected and Roe, that states can't impose bans before viability. And there is no question that 15 weeks was much, much earlier than viability.

Jennie: So let's talk a little bit about gestational bans. I think they've become the new thing that a lot of anti-abortion activists are going after. I mean, they have to have a logical reason to do it, right? There's a medical reason to have a pre viability ban.

Dr. Grossman: None that I can think of. Yeah. I mean, I mean the purported reasons that justify this kind of ban …some of the things that have been mentioned include concerns about safety, about abortion in the second trimester, for example, and we have a great deal of evidence about the safety of abortion, and it's a very safe procedure. It's been very well studied. And the reality is that abortion throughout the first and second trimester is safer than continuing the pregnancy to term and going through childbirth. It is true that the risk of complications and the risk of death are a little bit higher in the second trimester compared to the first trimester. But even still, those risks are less, um, if the pregnant person decides to continue the pregnancy to term. So, the safety argument just makes no sense. You know, another justification for these kinds of bans that has been voiced, it relates to fetal pain. And, you know, I will acknowledge that there is some controversy around some of the, the research on fetal pain, but that research evidence has been reviewed by the American College of Obstetricians and Gynecologists and the Royal College of Obstetricians and Gynecologists in the United Kingdom. And, you know, those experts who reviewed those data have determined that there… there really isn't any good evidence that fetuses can experience pain before the third trimester of pregnancy. That prior to that, the kind of the anatomical structures aren't in place for the fetus to experience pain. And it's just not neurologically developed enough to, to experience pain. You know, that said, even if there, and so certainly at 15 weeks, there's really no evidence that the, that the fetus feels pain. I guess I also just wonder, I mean, if there, even if there were good evidence that a fetus experienced pain, but it doesn't seem like a good argument to ban the procedure, perhaps it means that there needs to be an intervention to address fetal pain, but it, it doesn't seem at least from a medical perspective, it’s like a reason to, to ban the procedure. So those are the, some of the justifications that I've heard that really just don't make any sense from a medical perspective.

Jennie: Yeah. To me, I also think about, you know, it's not just gestational bans that we're seeing, we're seeing attacks on abortion on so many different levels and it impacts when people are able to get an abortion. So, you know, if you have a waiting period that's causing people to push their abortion back, then you might run into a gestational ban. They all seem to interact together to just block people's ability to access healthcare.

Dr. Grossman: Exactly. I think that's a really important point. It's not just that the anti-abortion movement is pushing these, uh, restrictions on abortion later in pregnancy in order to preserve access earlier in pregnancy. In fact, they're doing everything that they can to restrict access to abortion in any way possible and ultimately to make it completely inaccessible. This was something that we saw in Texas where, you know, when HB 2 or House bill 2 was, uh, went into effect in 2013 and led to the closure of about half of the clinics in the state. We saw that subsequently there was a significant increase in the proportion of abortions and total number of abortions that were done in the second trimester. So, when we interviewed patients during that time, we heard from them directly about how they face barriers, finding a clinic that was open kind of jumping through the necessary hoops in order to get the care that they need. And that pushed them later in pregnancy-- sometimes into the second trimester. So, from a patient's perspective, they're really getting squeezed on both sides here because the, some of these restrictions are just making it harder for them to access care earlier. And then these restrictions that are cutting off access later in pregnancy. And I also think it's really important to recognize, you know, who is being most affected by these restrictions. Uh, you know, we know that overall, the majority of patients seeking abortion are Black, indigenous, and other people of color. About three-fourths of patients who are seeking abortion are living at or below 200% of the poverty level. We know, particularly for second trimester abortion, that Black patients are more likely to seek second trimester abortion. And also, those living on low incomes are also more likely to be pushed later in pregnancy because it takes some time to put together the resources to be able to pay for the procedure. So, all these are the people who are going to be effected by these kinds of restrictions.

Jennie: Yeah. I mean, that's the part that always weighs heaviest on me is, if I were to need an abortion, one… I live in DC. So, it would be easy. I can easily afford it, but the people who are most impacted are the people who are less able to afford it are facing other barriers, whether that's the Hyde amendment or many other things that prevent them from being able to get insurance funding for abortion. And they're the people who are really going to suffer if all of these restrictions get to stay in place.

Dr. Grossman: Yeah, exactly. It's very true. And, you know, it's also important to, I think, to recognize that these populations are also, I guess I also just think it's important to put this into context about what else is happening in Mississippi in particular and what people who are living there face in terms of access to reproductive healthcare and reproductive healthcare outcomes and what the state is, or is not doing to address those problems. Mississippi has a very serious maternal health problem, maternal child health problem, in the context of a country that has a serious maternal child health problem. I mean, you know, we have, you know, just abysmal statistics in terms of maternal mortality, particularly for Black and indigenous people here in the US compared to other developed countries. And Mississippi is among the worst states. So, you know, nationally maternal mortality is about 17 deaths per a hundred thousand live births; in Mississippi it's about 33 deaths per a hundred thousand live births. And for Black birthing people in Mississippi, it's about 52. So even higher. And there's so much more that, that the state could be doing to address that maternal health crisis. In terms of infant mortality, Mississippi ranks 49th nationwide in terms of states. So again, there's so much more that they could be doing like extending Medicaid coverage to a year postpartum to ensure, um, that people get the healthcare that they need, uh, after giving birth. And I'm also concerned, you know, that this kind of, if this was allowed to go into effect that it, that it could also have a negative impact on maternal and child health outcomes, you an important reason why people seek abortion in the second trimester is because of, um, kind of worsening health conditions of the pregnant person. And I understand that there is a health exception for this law, but it can be really hard to actually implement those kinds of exceptions in practice because the doctor has to, you know, essentially test that this condition is, um, seriously threatening the person's health or putting their life in jeopardy. And particularly if there's severe sanctions for the doctor, that will be really kind of worried and reticent to do that because, you know, there are some possibility that they may face penalties. So, they'll end up kind of watching and waiting and following the person until their health condition worsens. And they may get to the point where those health conditions cause kind of irreparable harm. And so, it's, you know, on paper, it may be acceptable to the justices that there's a health exception, but in practice, it's, it's really hard to put those into effect.

Jennie: Well, and I think, you know, for putting context in Mississippi, it's also worth noting that there's only one clinic in Mississippi right now. So, abortion is already really hard to get without this gestational ban.

Dr. Grossman: Exactly. Yeah. Yeah. And you know, so what will happen if this does go into effect, people who need care past 15 weeks will have to travel out of state if they can, if they can, they have the resources or able to put together the resources that will certainly cause delays before they can access care. And those delays could also increase the risks for them as well.

Jennie: Yeah. I… I'm, I'm worried. I just worry about the, kind of the cascading effect, but, you know, abortion has already become so difficult to get, particularly in the South and in the Midwest that this is just going to make it so much harder for people who want to care for people who can't easily afford care or afford to travel.

Dr. Grossman: Yeah, exactly. And of course, I think what the concern is if this, you know, this law, which is really a very blatant challenge to Roe vs. Wade is allowed to stand, it really kind of will open up the possibility of, um, states essentially restricting abortion access perhaps to the point of making it inaccessible. Even if Roe hasn't been completely eliminated, it will be possible for states to severely restrict access, to make it essentially impossible to access. And so, we'll end up with this patchwork of states where, you know, solely, depending on where you live, you may or may not be able to access this critical element of reproductive care. Um, and so people who can't access it in their own state would have to travel elsewhere to get it.

Jennie: Yeah. And you know, it's just one of a slew of restrictions that we've seen and, you know, one of the good things we've seen is, you know, expanding access to medication abortion during the pandemic, making it easier for people to not have to go in person, but that doesn't apply to all states. So that's just another way that you're seeing inequities really opening up in these basically the same states where some people are going to be able to easily access that earlier care for medication abortion and the others will not.

Dr. Grossman: Yeah, no, but it's true. Um, we're, there's been a lot of attention to the recent FDA announcement that they're going to suspend or kind of exercise enforcement discretion related to the in-person dispensing requirement for mifepristone, the first of the two medications used in a medication abortion. And that will make a big bet is making a big difference in, in some states, but in the about 19 or 20 states where telemedicine is prohibited or whether are other laws that force patients to come in for really medically unnecessary visits, those people who live in those states were essentially denied access to, you know, these advancement in scientific knowledge and then service delivery. And they're having to follow really outdated protocols that require medically unnecessary visits.

Jennie: That feels like the recurring theme with so much of this is medically unnecessary barriers to abortion. There are so many of them.

Dr. Grossman: Yeah. And you know, again, I think that your point about bringing up the issue about medication abortion is it's really quite relevant to this discussion too, about later abortion. Again, back to the point about, you know, if policymakers were really serious about trying to reduce later abortion, then they would implement policies that would help people access care as early as possible in the pregnancy. Um, and so that would include expanding access to medication abortion and reducing those barriers. And in fact, that's something that we saw in our research in Iowa, which was one of the first places that expanded the use of telemedicine to provide medication abortion. And we saw that in the first two years after telemedicine was introduced, there, there was a significant reduction in second trimester abortion and patients were significantly more likely to obtain an abortion before 13 weeks. So, but again, of course there, that's not what's happening.

Jennie: I mean, it it's like the big, big picture, right? If they were really serious about this, they would make birth control free and easy to access and over the counter and sex ed and, you know, all of these other things they could do to actually ensure that people got easy access to comprehensive reproductive healthcare.

Dr. Grossman: Exactly. You know, in fact, that was one of our, part of the research that we did in Iowa. When we were doing this research on telemedicine access to medication abortion, it was also during the time that the state had a comprehensive program to expand access to the full range of contraceptive methods, including long-acting reversible methods for people who wanted them. And it really kind of showed how policies that were expansive and included both access to contraception and access to early abortion help people access care earlier and help people access preventative care as well. So, you know, there was a lot of talk about, you know, expanding access to abortion through telemedicine--could it potentially increase the abortion rate in Iowa because they expanded significantly the number of sites that were providing abortion care. But in fact, the total number of abortions in the state continued to decline as it had been previous to that again, because there was this expansive program to provide the full range of contraceptive options as well.

Jennie: Yeah. I think that's kind of been holding true nationwide too. Right? As you saw this increase in young people being able to access more methods of birth control and getting better sex education, you saw the abortion rate come down into play with that also came abortion restrictions in states, but you know, the investments in reproductive health were really also paying off.

Dr. Grossman: Yeah. I mean, I do just want to highlight that a caveat about looking at the official abortion statistics is that, of course those numbers don't include self-managed abortion when patients are doing things on their own outside of a healthcare system. And, you know, I think certainly as we see more and more restrictions come into play, particularly in the South and Midwest, we will see increases in self-managed abortion and that can be a safe and effective option for people. If they can get access to high-quality medications, they can get the same medications, they could get at a clinic. And if they know how to use them and how far along they are in the pregnancy, I think those can be used safely and in particularly patients have no other option. But the part that I'm really concerned about is the legal risks that people may be taking when they're self-managing their abortion. We know that there at least 20 to 25 cases of people who've been criminally investigated or, um, sometimes even jailed for allegedly attempting to end a pregnancy on their own or helping someone else end a pregnancy. And I'm really concerned that those kinds of prosecutions and trend toward criminalizing people who take matters into their own hands, that that will only increase.

Jennie: And I think this goes back to the earlier conversation of who's going to be the most impacted that, you know, the people you will see who get prosecuted will most likely be Black, indigenous, and people of color.

Dr. Grossman: Exactly. Yeah. And that's certainly true for the prosecutions that we've seen so far, as well as people living on low incomes. Those are the people who are most likely to face these risks of criminalization.

Jennie: Well, I think, you know, plenty to think about, plenty of concerns with the Supreme Court case. We always try to end the episode with an action item. So, something that our audience can do. Is there anything around this right now that the audience should be thinking about or getting involved with to help ensure abortion access?

Dr. Grossman: Well, I think that one thing that's really important is for people who care about this issue is to support local abortion funds and abortion funds that are working particularly in the South and Midwest where access is under attack. Abortion funds are already providing a critical service to, you know, help reduce the costs of the services for patients. And in some cases also providing logistical support and helping with travel and, you know, allowing people to sleep on their couches and things like that. And as if we get into a situation where access is really constrained and certain states and people are going to have to travel longer distance, I think the role of the abortion funds is only going to grow. So, this is an infrastructure that already exists. It's not like it has to be newly created and I'd really encourage people to invest in that.

Jennie: Yes. And it's fund-a-thon time. So, it is definitely the time to invest in your local abortion fund.

Dr. Grossman: Definitely.

Jennie: Well, Dr. Grossman, thank you so much for being here. I had a wonderful time talking to you about all of this stuff.

Dr. Grossman: Thanks so much for inviting me here. It was really nice talking with you as well. Jennie: Okay. Y'all I hope you enjoyed my talk with Dr. Grossman. I, like I said, I had a wonderful time talking to him. I learned a lot. So with that, if you have any questions for me, or you want to suggest the topic that we should cover as always feel free to shoot me an email at jennie@reprosfightback.com

Jennie: Thanks for listening everyone. And we'll see you on our next episode of RePROS Fight Back. For more information, including show notes from this episode and previous episodes, please visit our website at reprosfightback.com. You can also find us on Facebook and Twitter at RePROS Fight Back, or on Instagram at reprosfb. If you like our show, please help others find it by sharing it with your friends and subscribing, rating and reviewing us on iTunes. Thanks for listening.

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