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Where things stand since 'Roe v. Wade' was overturned two years ago

AILSA CHANG, HOST:

It was two years ago today that the Supreme Court overturned Roe v. Wade, meaning abortion access was no longer guaranteed in America. In the years since, 14 states have banned abortion. Many more states have restricted access. And NPR's Selena Simmons-Duffin is here to talk about the ongoing legal fights playing out all across the country. Hi, Selena.

SELENA SIMMONS-DUFFIN, BYLINE: Hi, Ailsa.

CHANG: OK, so these legal fights that you're about to tell us about, they're kind of an irony, right? Because Dobbs, the Supreme Court decision that overturned Roe, wasn't it supposed to move the abortion fight away from the courts?

SIMMONS-DUFFIN: Yeah, that's exactly right. Justice Samuel Alito wrote in his opinion, quote, "the court overturns Roe and returns that authority to the people and their elected representatives" - as in states should be regulating abortion, the Supreme Court is getting out of it. But that is not how it panned out. There have been lots and lots of suits, including two cases making it all the way back to the Supreme Court just this term. And there are a few themes as I see it. First, the first theme is how to navigate the drastic differences in the legality of abortion from one state to another. Can people travel for abortions? Can doctors provide care across borders? And then how the bans work when it comes to pregnancy complications, where the lines should be drawn.

CHANG: OK. Let's dig into one of those cases about where lines should be drawn. That's now before the Supreme Court, right?

SIMMONS-DUFFIN: Yeah. So this is the case - a case from Idaho. It's called Moyle v. U.S., and we could hear a decision on it this week. The state law says that abortion is only legal to save the life of a pregnant patient during an emergency. The Biden administration says federal law requires abortion to be allowed to stabilize a patient, and that should preempt state law, so abortion should be allowed in more kind of situations. So it's a little confusing. Let me give you an example. Dr. Sara Thomson is an OB-GYN in Boise, and she explained how this state and federal conflict can play out.

SARA THOMSON: I'm caring for women in the early second trimester whose babies will not survive because the water is broken, and I'm having to tell these women that although the national standard of care is immediate delivery, I cannot offer that yet because of Idaho abortion law.

SIMMONS-DUFFIN: In Idaho, she can only intervene if the woman is going to die. She can't just be at risk of getting sicker and sicker. Under federal law, Dr. Thomson would be able to intervene right away and get her patient healthy. So until this case is decided, in situations like this, the options are wait until the baby dies in utero, wait until the mother develops a serious complication like an infection or transfer her out of state. Here is Dr. Thomson again.

THOMSON: That is incredibly difficult news for patients to receive and for doctors to deliver. The last time I had to tell a patient that, I started to cry.

SIMMONS-DUFFIN: Again, we could get the decision in this case as soon as Wednesday. It's unclear how it's going to go based on oral arguments, but the decision's impact will likely stretch far beyond Idaho. There are lots of states with similar narrow medical exceptions like Texas and Tennessee and others. The Supreme Court is poised to say whether those exceptions are too narrow or not.

CHANG: OK. Let's go back to the other kind of case you mentioned, the difference in legality between states. What sort of conflicts have been coming up there?

SIMMONS-DUFFIN: So an important piece of context is that the number of abortions in 2023 actually went up. And that fact surprised researchers and has galvanized anti-abortion activists to tamp down on some of what's allowed abortions to continue like telehealth and interstate travel. One major attempt at that was just thwarted. A group of anti-abortion doctors sued the Food and Drug Administration, aiming to pull an abortion medication off the market or at least make it harder to get. But the Supreme Court rejected that challenge earlier this month. Abortion pills remain available. But now three states - Idaho, Missouri, and Kansas - are suing the FDA again, saying that the prescribing rules that allow abortion medication to be sent through the mail undermines their ability to enforce their bans. So that means the Supreme Court could be asked to weigh in on abortion medication again if the case gets that far.

CHANG: That is NPR's Selena Simmons-Duffin. Thank you, Selena.

SIMMONS-DUFFIN: Thank you. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Selena Simmons-Duffin reports on health policy for NPR.
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