Fact-checking the Arguments That Could Overturn Roe v. Wade

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Possibly the thing that frustrates me most in writing about abortion is how malleable the concept of facts can become — at least for the anti-choice camp. One side will build an argument using research compiled over years, science, and the most recent data; they will talk to doctors and statisticians and social-welfare experts and actual patients. Yet for the officials who ultimately make the law, nothing seems to move the needle like the loudest voice in the room shouting about murder. Whatever claims to medicine they make are easily debunked and their video evidence is obviously doctored, but still it stretches further than reality in statehouses spanning half the country — possibly even in the Supreme Court.

As the justices heard oral arguments in Dobbs v. Jackson Women’s Health Organization Wednesday, the same pattern played out again as predictably and maddeningly as ever. Representing Mississippi, Solicitor General Scott G. Stewart asked the Court to overturn Roe v. Wade, the landmark 1973 decision protecting abortion access up until 23 to 24 weeks nationwide. Mississippi seeks to cap abortion access at 15 weeks statewide, though Roe specifically outlaws abortion bans before viability (the point at which a fetus could survive outside the womb). Subsequent Supreme Court rulings have continually reaffirmed Roe, particularly 1992’s Planned Parenthood v. Casey, which added some clarifications: Though states could regulate abortion procedure before viability, they could not place “undue burdens” on access. That doesn’t sit particularly well with Stewart, whose argument rested not on fact or (really) precedent but on emotionally needling claims about “unborn lives” and untold damages the country has suffered because of their loss. The Court’s conservatives seemed to accept the bulk of his statements, no questions asked.

Attorneys representing the Biden administration and the Center for Reproductive Rights, meanwhile, presented the justices with expert testimonials and state-specific data. Julie Rikelman and Elizabeth Prelogar pointed them to specific page numbers in answering challenges the bench raised. They did their homework, and yet those listening along may have walked away with the ominous sense that, once again, the truth may not cut it — that a new national standard on abortion would not be based on science but on politically motivated lies.

Below, a limited list of the more egregious fallacies raised in Dobbs v. Jackson Women’s Health Organization.

Stewart’s repeated assertion that Roe has “damaged” the country and/or cost it millions of “unborn lives.”

The warning that Roe is “an egregiously wrong decision that has inflicted tremendous damage on our country” bookended Stewart’s arguments and, even in its incredible vagueness, does not stand up to scrutiny. When abortion opponents talk about “lives” lost to abortion, the presumption of fetal personhood is baked right in. Without even touching that, though, there’s a mountain of credible data highlighting the ways in which abortion access has demonstrably improved the odds for generations of actual living people. In other words, Stewart’s logic holds only if you consider a hypothetical future to be more important than the future of the patient in the waiting room.

To start: Outlawing abortion has never meant that people stop terminating unwanted pregnancies; a lack of safe options only increases the likelihood of complications. It is hard to know how many patients died from illegal abortion in the pre-Roe landscape: You can’t reliably track statistics where stigma and fear of reprisal cloud reporting. Per WHO, 4.7 to 13.2 percent of the world’s annual maternal deaths are attributable to unsafe abortions.

But one really galling element in Mississippi’s argument was the way it cast pregnancy as a safe and easy experience, when abortion access and maternal health are two sides of the same coin. And the research is clear: Where states enact abortion restrictions, maternal and infant health suffer. Indeed, multiple studies show that the more restrictions a state enacts, the higher its maternal mortality rates are likely to be.

The people behind many of these statistics will often be low-income women of color disproportionately burdened by state laws that make health care prohibitively expensive: If you cannot afford contraception, it stands to reason you will not be able to afford health insurance or the staggering costs of pregnancy. (In the U.S., the average hospital birth is estimated to cost $4,500 out of pocket — and that’s if you have insurance.) Pregnancy is always expensive; it also comes with a suite of potential health risks, some of which — hemorrhage, preeclampsia, placenta previa — can and do prove fatal. This is particularly true across the South, where the data suggests one in every five women of reproductive age lives in a county with a high risk of death from childbirth. Black and Indigenous women are about two to three times as likely (respectively) to live under these conditions compared to white women. (To be clear: It’s not just women who seek and receive abortions, though that is largely how government and other agencies track data; trans and nonbinary people often have an even harder time accessing the health services they need compared with cis patients.)

Being able to access the very reproductive care conservative-leaning states heavily regulate can mitigate that risk, but let’s look at Mississippi as an example: The state boasts the country’s highest infant-mortality rate (nine deaths per 1,000 births) as well as a high maternal-mortality rate (about 22 deaths per 100,000 births overall, though the outcomes are much worse for Black and Latinx patients). Medicaid currently finances two-thirds of all births in the state, and the legislature recently declined to extend coverage postpartum — even though, according to Pew Research, almost a quarter of maternal deaths occur between six weeks and a year after pregnancy ends.

Then there’s abortion access as a predictor for opportunity. Most abortion patients live at or below the poverty line, are young, and/or already have at least one child. Caring for another child — or even just one — requires resources: someone to take care of your kid while you work to pay for rent, food, clothes, medical bills, all the expenses required to maintain a life. According to the Treasury Department, the average cost of child care in the U.S. totals about $10,000 per year, per child; for someone living at or below the poverty line — which most abortion patients are — that may be the lion’s share of their income. Pregnancy might obligate a pregnant person to drop out of school, quit their job, stay in an abusive relationship; in short, to forego opportunities that may break cyclical poverty.

We could go on like this for quite some time, but I will just point to the Turnaway Study to highlight a few of the ways cutting off abortion access actually damages lives: People who tried to terminate unwanted pregnancies but were thwarted by local laws experienced higher rates of pregnancy complications, domestic abuse, anxiety and depression, and lingering health problems after giving birth — all problems that tended to affect their children, too. Justice Sonia Sotomayor was correct in her rebuke of Stewart’s claims, saying pregnancy places poor people “at a tremendously greater risk of medical complications and ending their life” and that effectively, “The state is saying to these women, We can choose not only to physically complicate your existence, put you at medical risk, make you poorer by the choice because we believe what?”

The idea that a “common abortion procedure is brutal” and that health risks to patients “surge” past 15 weeks.

That’s according to Stewart but not the medical community. About 90 percent of legal abortions occur in the first 12 weeks of pregnancy, which is to say in the first trimester. Complications are stunningly rare — we’re talking a mortality rate of 0.6 deaths per 100,000 abortions. Per statistics cited in a 2018 Congressional report, you are more likely to die from a colonoscopy or during a dental procedure. Comparatively, the risk of death from childbirth may be 14 times higher with CDC data demonstrating pregnancy-related deaths occur far more often for women of color than for white women.

Stewart, however, is talking about second-trimester abortions, which typically occur when a patient experiences changes in circumstances — around finances, living situation, or health, for example — or when overlapping barriers to access make it impossible to terminate earlier. (Again, see the Turnaway Study.) During the second trimester, the provider will use a dilation and evacuation (D&E) procedure during which the cervix is dilated, amniotic fluid is drained, and the fetus and placenta are removed from the uterus. It takes about 15 to 20 minutes and is more involved than, say, medication abortion — taking two pills to effectively induce a miscarriage — but it is not unsafe. Mortality rates for abortions performed between 14 and 17 weeks sit around 2.5 deaths per 100,000 procedures, so “surge” doesn’t feel accurate.

And though that number does continue to tick upward the further a patient progresses into a pregnancy, it’s worth keeping in mind that people who seek abortion around, say, 21 weeks (roughly 1 percent of all abortions) do so for complex and often desperate reasons. This is approximately the point at which fetal abnormalities present themselves; maybe the patient has just learned carrying the pregnancy to term will likely result in stillbirth while also posing a significant threat to their own health.

The claim that scientific advancement has surfaced new information about “fetal pain, what we know the child is doing and looks like and is fully human.”

Throughout his arguments, Stewart placed a puzzling and persistent emphasis on every fetus being a “human organism,” “undeniably human,” and “fully human” as if a prospective abortion patient would ever be carrying any other variety of embryo. Sci-fi paranoia aside, the 15-week mark is medically arbitrary. The American College of Obstetricians and Gynecologists has not seen any new information that moves the needle on the concept of “fetal pain.” Its verdict (citations in the link):

A human fetus does not have the capacity to experience pain until after viability. Rigorous scientific studies have found that the connections necessary to transmit signals from peripheral sensory nerves to the brain, as well as the brain structures necessary to process those signals, do not develop until at least 24 weeks of gestation. Because it lacks these connections and structures, the fetus does not even have the physiological capacity to perceive pain until at least 24 weeks of gestation.

Stewart saying he sees no reason to believe other states would necessarily “change their laws in a more restrictive direction” if the Court sided with Mississippi.

One hundred six abortion restrictions passed in 19 state legislatures in the first 10 months of 2021 say otherwise. That record-breaking figure includes a number of flat-out bans on abortion as well as a six-week ban out of Texas, which is also currently under consideration by the Supreme Court. To ignore the backdrop for this case feels insincere to the point of insult: The Supreme Court interprets the federal constitution. Its rulings affect the entire country, and Stewart would not be pleading with the Court to reverse Roe’s supposed national “damage” if he didn’t think it had the power to do that.

Chief Justice John Roberts’s claim that, though “the vast majority of other countries” adhere to a 15-week standard, we share a viability line in common with China and North Korea.

Abortion opponents like to talk about how the U.S. belongs to an embarrassing list of seven countries that allow abortion after 20 weeks of pregnancy. (Surprise, surprise, this also came up in one of Mississippi’s briefs.) China and North Korea get a lot of airtime in that argument; Canada and the Netherlands, as Jezebel’s Susan Rinkunas points out, strangely never do. But this claim fails to account for gaping differences in social welfare and medical access between the U.S. and many of the European countries it holds out as peers. When you factor in the aforementioned reasons why people typically seek to terminate at or after 15 weeks and consider that the U.S. is comparing itself with countries whose universal health care often covers the cost of abortion, the discrepancy begins to make more sense. If you could go to a government-run clinic and get an abortion free of charge, as is the case in the United Kingdom, you may not find yourself pushed up against a 15-week wall because it took so long to raise funds for the procedure, child care, transportation, lodging, and all the hidden costs patients often confront stateside. If you — hypothetically a pregnant person in the U.K. — found out at 24 weeks that your pregnancy carried a bunch of health risks, the law would allow you to terminate. (Not to suggest the U.K. is perfect — simply to say Roberts and his ilk lean on a bad-faith argument.)

The idea that contraception is affordable and accessible enough that people needn’t rely on abortion to avoid pregnancy.

Stewart trotted out this line a few times, and it is offensively disingenuous. Under the Affordable Care Act, contraception is indeed supposed to be free, but Republican lawmakers have worked very hard to make sure that it isn’t. Throughout the U.S., even people with private insurance run into problems — for example, the contraceptive method your doctor prescribes isn’t one they cover, obligating you to either pay out of pocket or settle for something you don’t want. And that’s assuming you have coverage; according to the Kaiser Family Foundation, 11 percent of women ages 19 to 64 (or more than 10 million people) do not. For that group, the out-of-pocket cost of contraception will likely be untenable: The online pharmacy company GoodRX ballparks that annual total between $200 (to purchase an IUD, not including doctors’ fees related to its insertion) and $2,000 (for a vaginal ring). Uninsured rates are highest in a number of the states most hostile to comprehensive reproductive health, of which Mississippi is one. It is a desert for reproductive-health care: 69 of its 82 counties have three or fewer publicly funded clinics; 21 of those have only one.

And even if you do have access to contraception, no option is 100 percent effective at preventing pregnancy. While a copper IUD may have a 0.1 percent failure rate, you’re looking at about 7 percent for non-injected or implanted hormonal options (including the pill), 13 percent for a condom, and 17 percent for a diaphragm — to present a very limited array of possibilities — per the CDC. I would wager that in a state like Mississippi, where a woefully lacking sex-education approach is reflected in its high teen-pregnancy rate (the third highest in the country in 2016), those numbers may well be a little bigger. Regardless, behind the statistics are people who tried not to become pregnant but still did.

Stewart’s closing claim that “scrupulously neutral” — a term Kavanaugh used repeatedly to describe the way the Court should be about abortion — is an apt descriptor of Mississippi’s request.

This man keeps lying right to my face.

Fact-checking the Arguments That Could Overturn Roe v. Wade