Ohio’s victory on abortion can’t replace what we lost: The federal right to reproductive justice
As we spoke, blooms of bright red blood edged throughout the white hospital towel. She sat upright in the stretcher. The towel, already saturated, was bunched under her seat. She’d taken the bus one and a half hours to our hospital, and had stuffed these towels into her pants to stem the bleeding, tying a large jacket around her waist. I imagined how it must have felt to bear the stop and start of each bus stop while feeling the warm blood leak out of you.
She was having a miscarriage.
Both she and I were lucky that this happened prior to June 2022, when the Supreme Court struck down the federal right to abortion. Her miscarriage required urgent treatment. The standard care is a procedure called a dilation and evacuation (more often called by its shorthand, D&E). This procedure is equivalent to a surgical abortion. The Dobbs v. Jackson Women's Health Organization decision immediately led to an onslaught of state abortion legislation drawing legal borders around when, where, whether and by whom medical treatments can be provided to pregnant patients. A dizzying array of laws now exist.
The recent decision by Ohio voters to constitutionally enshrine the right to abortion access is an example of one of these laws. And though it is critical in securing access to abortion services for Ohioans, it doesn’t replace what we lost: the right to reproductive justice from sea to shining sea.
Across the United States, doctors and patients are still trapped within borders. Gaping differences remain across states in the medical care doctors can provide and patients can receive. Interstate migration for abortion care persists.
My young patient suffering a miscarriage, for instance, would have been at risk of receiving starkly different care if she had gone to a hospital in Ohio rather than a hospital in adjacent Kentucky.
In Ohio, voters guaranteed that doctors will now be able to confidently provide the needed standard of care.
In Kentucky, however, doctors’ hands remain tied. Even though Kentucky just re-elected a Democrat to the governorship — touted as a victory for abortion rights — the state has some of the strictest abortion laws in the country, banning all abortions except those necessary to save a pregnant person’s life.
The ban targets doctors by design, threatening them with a felony charge, having their medical license revoked and up to five years in prison if they are deemed to have broken the law. Thus, a doctor, knowing their livelihoods and personal freedoms are at risk, might hesitate before providing an abortion even when it’s obviously the standard of care. They might wonder, Would the legislators and lawyers who created the law — non-medical experts — consider this amount of bleeding life-threatening? This is a very real calculus that doctors in Kentucky are having to make to protect themselves from the risk of criminalization.
Federalism, the concept of state rights, is what allows for pregnant Ohioans and pregnant Kentuckians to have vastly different access to the standard of care. In handing down the Dobbs decision in June 2022, the Supreme Court announced that it was restoring authority on reproductive health treatment to the states. But in reality, the Supreme Court has wrested authority from patients and doctors.
Doctors in Ohio are no less American than doctors in Kentucky. Pregnant patients in Ohio are no less American than pregnant patients in Kentucky. So we should not accept that decisionmaking belongs to states because this reifies the Berlin Walls that exist between states that have access to abortion and those where it is severely restricted.
To be clear, this does not mean that the victory in Ohio shouldn’t be celebrated. Enshrining abortion rights in Ohio means that pregnant patients from Kentucky and the other nearby states that also have abortion bans, like Indiana and West Virginia, now have the option to travel to Ohio to obtain an abortion.
But this is not enough.
In 2014, 49 percent of pregnant patients seeking abortion services lived below the federal poverty level. This means that many pregnant women who seek abortions cannot afford to travel for access.
So, in the same breath that we celebrate the Ohio victory, we must assert that no single state constitutional legislation is enough to overcome the Supreme Court’s elimination of national constitutional protections. We need to keep pushing for “Equal Access to Abortion, Everywhere” by reinstating federal abortion protections. We should be pushing for federal solutions, like the Women’s Health Protection Act. No matter how long it takes.
Hazar Khidir, MD MHS is an emergency physician and health services researcher at Yale University and a Public Voices fellow of the OpEd Project.