In case you missed it this week, abortion rights and access were on the ballot in three states in the 2018 midterm elections. And the mixed results have experts worried about the future of abortion access in America.
West Virginia and Alabama both passed amendments that—if signed into law by the states' respective governors—could have profound repercussions for women's reproductive health care and bodily autonomy. Oregon, on the other hand, voted down a bill that would have banned public funds from being used for abortion.
These anti-abortion bills broadly and unequivocally state that the right to abortion and the public funding of abortion are not protected under the state's laws.
West Virginia's Amendment 1, which simply states, "Nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion."
Alabama's Amendment 2 is similar, but goes one step further by enshrining the "right to life" of fetuses and unborn babies. It functions to "declare and otherwise affirm that it is the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, most importantly the right to life in all manners and measures appropriate and lawful; and to provide that the constitution of this state does not protect the right to abortion or require the funding of abortion."
Neither amendment actually puts any restrictions on abortion at present, but they lay the groundwork for doing so in the future.
They are best described as "trigger amendments" that in effect set up a legal framework for such restrictions going forward, as Very Reverend Katherine Hancock Ragsdale, Interim President and CEO of the National Abortion Federation (NAF), tells SELF. "At the moment they don't mean anything, but they could have very serious consequences for abortion in this country."
The clause in each amendment specifying that abortion funding is not required means that the state government could at any time (after it's signed) propose legislation denying health care coverage for abortion to people whose insurance is publicly funded, including people on Medicaid and state employees, Ragsdale explains.
The clause in both amendments stating there is no protection for the right to abortion, on the other hand, will only gain teeth if the Supreme Court overturns Roe v. Wade, Ragsdale explains. As the current law of the land, Roe, which guarantees Americans the legal right to abortion, supersedes state laws. But if overturned, the issue of abortion will be left up to each individual state. This means abortion restrictions or outright bans could be instituted in West Virginia or Alabama—even, theoretically in the case of rape, incest, or when the life of the woman is at risk, given that the amendments make no provisions for exceptions in these cases.
Additionally, the "right to life" clause in Amendment 2 in Alabama could have even graver implications for women's health in the event that Roe is overturned. In essence, it could theoretically be used to justify any law regulating reproductive rights in the name of "the sanctity of unborn life," Ragsdale says.
While this is all speculative at this moment, reproductive health experts and advocates are extremely concerned about the potential impact on women's health.
"Amendment 1 opens the door for politicians to take away a woman’s right to have an abortion without exception," Anne Banfield, M.D., the Young Physician Representative to the West Virginia Section of the American College of Obstetricians and Gynecologists (WV ACOG), tells SELF in a statement on behalf of the section.
Abortion restrictions would disempower doctors to make the most medically sound decision for their patients. "[Amendment 1] could place doctors in the untenable position of denying needed services to women whose pregnancies threaten their health," Dr. Banfield explains. “Physicians cannot always predict what course medical conditions or complications will take or how quickly they may lead to mild health problems, severe injury, or even death." From a medical provider's point of view, she says, "The best health care is provided free of political interference in the patient-physician relationship."
Physicians are also worried about how laws restricting and defunding abortion will affect disadvantaged women who already face barriers to care. "We cannot ignore how Amendment 1 in West Virginia and Amendment 2 in Alabama will disproportionately harm women of color and women with low incomes," Dawn Laguens, Executive Vice President and Chief Brand Officer of the Planned Parenthood Federation of America (PPFA) and the Planned Parenthood Action Fund (PPAF), tells SELF in a statement.
There is also the fear that women may turn to dangerous means of abortion should safe and legal access be limited. "We know that when abortion is illegal or highly restricted, women resort to unsafe means to end unwanted pregnancies, including self-inflicted abdominal and bodily trauma, ingestion of dangerous chemicals, self-medication with a variety of drugs, and reliance on unqualified abortion providers," Dr. Banfield says.
The future of abortion in West Virginia and Alabama is unclear right now. But the fact that they are joining so many other states with similar laws that could be used to restrict the legal status of abortion—along with unresolved threats to do so coming out of the White House—means that there is more at stake in the debate over women's reproductive care than ever.