Experts Discuss Potential Challenges, Remedies to Federal Abortion Ruling

Two Duke doctors, a legal scholar brief media on fallout from decision

Experts Discuss Potential Challenges, Remedies to Federal Abortion Ruling
Dr. Jonas Swartz, law professor Neil Siegel and Dr. Beverly Gray

DURHAM, N.C. -- Demand for reproductive medical care has already increased in North Carolina due to the June 24 U.S. Supreme Court ruling that overturned citizens’ constitutional rights to end a pregnancy with abortion, according to two experts in obstetrics and gynecology from Duke Health.

They, along with an expert from the Duke University School of Law, met with reporters Monday to discuss the potential impacts of the Roe v. Wade reversal.

The panel explored whether people could be prevented from traveling to another state for a legal abortion, if they could be prosecuted for obtaining an abortion in another state where it is legal, whether states could limit interstate mail delivery of medication to induce an abortion, whether Friday’s ruling could be challenged as unconstitutional because it subjects citizens to vague laws that interfere with their right to due process, and several other topics.

Here are excerpts (Replay the briefing on YouTube):

ON A POTENTIAL INFLUX OF OUT-OF-STATE PATIENTS:

Dr. Beverly Gray, obstetrician and gynecologist, and founder of the Duke Reproductive Health Equity and Advocacy Mobilization team

“We are anticipating that volumes will increase. You’ve already seen that volumes have increased over these past few months as more restrictive bans have been put in place in states like Texas and Oklahoma. There is this tidal-wave effect of patients in those states going to nearby states.”

“There are delays in care because all the appointments are taken (by) folks (from) out of state. And so, we are anticipating that there will be an increase in need for patients in the Southeast and North Carolina. … We have been thinking about this for a few months and how we can expand the care that we offer so that we can be positioned to provide health care for the patients that need it."

 

ON WHETHER STATES COULD RESTRICT TRAVEL OR PROSECUTE THOSE OBTAINING LEGAL ABORTIONS IN ANOTHER STATE:

Neil Siegel, professor of law and professor of political science

“This does not happen very often, that you have states trying to regulate conduct that takes place outside their own jurisdictions. I can tell you that the Supreme Court has protected what’s called the ‘right to travel,’ ... reaffirmed as recently as 1999. … I can, with some measure of confidence, say there are five votes on the Supreme Court (Chief Justice Roberts and Justices Breyer, Sotomayor, Kagan and Kavanaugh) for the proposition that states cannot prohibit their residents from going out of state to obtain an abortion.”

“Those prosecutions would be very difficult in most cases to pull off because of the lack of evidence. And the prosecutor could ask the doctor’s office or the state in which the abortion occurred for relevant evidence or documentation. But I don’t imagine states that continue to provide access to reproductive health care are going to cooperate, nor would they be required to, and moreover, I could see HIPAA (the Health Insurance Portability and Accountability Act) protecting the medical privacy of the patient who obtained the abortion."

 

ON WHETHER STATES COULD RESTRICT INTERSTATE SHIPMENT OF MEDICATIONS TO INDUCE ABORTION:

Neil Siegel

“In my mind, states that are intent on criminally prohibiting abortion are not going to allow safe, effective medication to induce abortion, or at least many of them won’t. …”

“One possibility that comes to mind would be some kind of argument based on federal preemption -- the idea that valid federal law trumps inconsistent state law would be obstacle preemption.”

“Could you make the argument that the FDA’s approval of these drugs and its approval of their interstate shipment -- that these state laws would withstand as an obstacle to the achievement of the statutory objectives that the FDA is implementing? I do think there was a plausible argument under the courts’ preemption doctrine that obstacle preemption would be an available argument. But having said that, I am not at all confident that there are five justices on the current court who would agree with that assessment.”

ON THE IMPACTS OF RESTRICTING ABORTION AFTER 20 WEEKS:

Dr. Jonas Swartz, assistant professor in the Department of Obstetrics and Gynecology and a researcher in reproductive health issues

“Abortion becomes increasingly rare as we go along with gestational age, so you might think what’s the problem with a 20-week ban? Well, people could get their anatomy ultrasound (which takes place between weeks 18 and 22) and the doctors could see some anomaly or some change, and a couple would immediately have to make a decision about whether they wanted to move forward with termination because the clock was ticking.”

“And so, you’re putting families that are already in this very difficult and devastating situation, now, in this falsely imposed time pressure. There’s nothing special about 20 weeks in terms of development of fetus. There’s no special function that has been discovered about fetal well-being at that time. Abortion does not cause pain to fetuses. Fetuses can’t feel pain prior to 28 weeks. So this is just an arbitrarily designated risk that was historically imposed.”

 

ON WHETHER VAGUE ABORTION LAWS COULD BE UNCONSTITUTIONAL:

Neil Siegel

“A third possible legal theory that is implicit and much of our conversation today is what’s called the vagueness challenges. The due process clauses of the Constitution protect people against vague laws, especially criminal laws. And if you have a statute that talks about an immediate risk to the life of the person -- as the doctors have asked today -- what exactly does that mean?”

“… It would not surprise me if a number of federal courts were to decide that a number of these laws are unconstitutionally vague, that you can’t pass a vague statute vaguely broadly banning abortion with some exceptions that are not particularly defined.”

 

ON HOW RESTRICTING ACCESS COULD WORSEN DISPARITIES FOR BLACK PEOPLE WHO ARE PREGNANT:

Dr. Beverly Gray

“Restricting access forces people to continue their pregnancies to delivery, leaving them facing the health risk of pregnancy and barriers to abortion exacerbate the disparities that already exist in our in our country. And barriers that limit abortion access disproportionately affect communities of color. And we know that in our country, Black women are already facing a maternal mortality rate that’s three times higher than that of white women, and when we limit access to abortion, we force people to carry pregnancies to term and face those risks.”

 

ON HOW CARE SHOULD EVOLVE UNDER NEW LAWS:

Dr. Beverly Gray

“We have to respect the expertise of the patients that are seeking care. There’s been a lot of sadness and distress around this ruling, but I think there are also some areas of hope. There are communities that can be the experts in how we restructure how we provide care in this country.”

“… I think we’ve cobbled together the system relying on Roe (v. Wade) and now we’re facing a different challenge. And we just need different tools, different experts. We need the communities that are impacted the most to be at the table. We need to listen to stories of people who have had abortions. … I’m hopeful that through this horrible ruling, through the worsening of these disparities, that we’re going to come out of this with something better. We have to.”

Faculty Participants

Beverly Gray, M.D.
Dr. Beverly Gray is an obstetrician and gynecologist, an associate professor in the Department of Obstetrics and Gynecology and founder of the Duke Reproductive Health Equity and Advocacy Mobilization team. 

Neil Siegel
Neil Siegel is a professor of law and a professor of political science at Duke University. He also directs Duke Law’s Summer Institute on Law and Policy and is a former clerk of Associate Justice Ruth Bader Ginsburg.
 
Jonas Swartz, M.D.
Dr. Jonas Swartz is an assistant professor in the Department of Obstetrics and Gynecology and a researcher in reproductive health equity issues, including a 2020 study finding that many women have minimal knowledge of abortion laws.