On January 22, 2025, the Silicon Valley branch honored the 52nd anniversary of the 1973 Roe v Wade Supreme Court decision, which gave women the right to choose whether to continue a pregnancy, by hosting a “Reproductive Rights” webinar. More than 160 viewers tuned in from all over California for the Zoom meeting.
Speaker Emily Bazelon, staff writer for the New York Times Magazine, senior research fellow at Yale Law School, and co-host of the Slate podcast Political Gabfest, has written on legal, feminist, and family issues–for example, how the Supreme Court’s decision to overturn Roe (Dobbs, 2022) impacts people seeking abortions.
“Dobbs in some ways was shocking, in others not a surprise,” said Bazelon. “One expected abortion to become more restricted, and the number of abortions to go down. But though 22 states enacted severe restrictions, the actual number of abortions went up. How could this be?”
First, a number of abortion clinics moved across state lines, avoiding restrictions. More important was the widespread availability of abortion pills. Before Dobbs, 50% of abortions were pill-induced; since Dobbs, 63% of abortions happen this way. During COVID, the FDA approved a network of “self-managed” abortion providers, while some companies also added these pills to their health coverage plans. “This amounts to a huge shift in the tradition of care,” said Bazelon.
There are a few risks associated with self-managed abortion, but the more urgent consequence of Dobbs is the lack of care for problem pregnancies. In many states a doctor must judge that the mother’s life is at risk before performing a D&C, while a septic infection or loss of future fertility are deemed inadequate reasons for having an abortion. As a result of doctors’ fear of prosecution, there have been some well-publicized deaths, which have led to a shift in point of view regarding abortion rights. The passing of state ballot measures in support of abortion rights reflects this shift, now that lives are on the line.
But why did voters who supported abortion rights in Florida, Ohio, and other states vote for Trump, who had been prominently against them? First, Trump backed off from his extreme position and instead advocated “Leave the issue to the states,” which defused opposition. Second, abortion rights were not the top-of-mind issue for many voters.
“What happens next is up to Trump,” said Bazelon. “He stiff-armed the strongest opponents of abortion by distancing himself from a ban after 15 weeks.” However, he still has tools at hand. He could announce strict enforcement of the Comstock Act of 1892, which outlawed shipment of obscene materials, contraceptives, and abortion-related items or providing information about them. The provisions regarding contraceptives were repealed in the early 1970’s while the ban on shipping abortion materials has not been enforced for decades. If the Comstock Act were to be strictly enforced, it could have a huge impact on abortion availability.
In a little-remarked change last year, the Governor of Louisiana added mifepristone and misoprostol, the key elements in self-managed abortion pills, to its list of controlled substances. Other states may follow suit, despite the protest from the American College of Medical Toxicology that these substances in no way fit the medical definition.
In a Q&A period following her talk, Bazelon was asked about the effectiveness of “shield laws” that some states have passed to protect doctors who provide abortion assistance to out-of-state patients from lawsuits. She was not optimistic, saying that long-standing “full faith and credit” precedents require states to cooperate in enforcing each other’s judgments. It is not likely that a conservative Supreme Court would overrule these precedents. However, non-US sources are not affected by these laws.
Bazelon was also asked whether ratification of the Equal Rights Amendment would override the effects of Dobbs. She replied that again, application of the amendment would be up to the Supreme Court. “The country has never clarified women’s constitutional rights.”
“Abortion was declared a crime by doctors in the 1850s as a way to discredit midwives,” said Bazelon. “Ob-Gyns never took abortion or birth control as part of their practice…. Questions of reproductive justice–whether a woman had a right to raise a child decently or decide not to have one–were not considered.”
In response to a question about male birth control, Bazelon noted that “Male birth control is not subject to the same restrictions [as for the female]. Efforts to create a male contraceptive pill were discontinued because ‘some men were getting depressed’.” (At a watch party held in Los Altos at The Terraces, this statement led the entire group to burst into ironic laughter.)
Several members of the audience asked how they could act to support women in other states, and get abortion rights reinstated. Bazelon suggested that familiarizing oneself with the issue and sharing information to make abortion acceptable are good steps, but she added “Truly, the only way abortion rights have ever been advanced is through radical action.”
The recording of the presentation may be viewed below. The presentation materials are available HERE.