Over the last decade, public health research has demonstrated the short-term, long-term, and cumulative costs of delayed or denied abortion care. These costs are imposed on people who share common characteristics: abortion patients are predominantly low income and disproportionately people of color. Public health evidence, by establishing how law contributes to the scarcity of services and thereby entrenches health disparities, has vividly highlighted the connections between abortion access, race, and income. The contemporary attention to abortion law’s relationship to inequality is no accident: researchers, lawyers, and advocates have built an infrastructure for generating credible empirical studies of abortion restrictions’ effects.
What might surprise even close observers of abortion policy is how the federal courts, including the Supreme Court, have cited contemporary public health research. Recent litigation around the U.S. Food and Drug Administration’s requirement that patients collect in-person the first drug of a medication abortion—a two-drug regimen taken over two days—is an example. The federal district court, in that litigation, drew heavily from public health research demonstrating the health consequences of denied or delayed abortion care.
Betting on courts to strike down abortion restrictions, however, is a risky wager, particularly given the current ambiguity about how the constitutional standard for evaluating abortion restrictions applies. This Article shows that abortion law is moving beyond constitutional litigation and toward building capacity for delivering remote or virtual care. The confluence of regulation, funding, and evidence has helped facilitate both telehealth for abortion and self-managed abortions, which can extend abortion access despite the evisceration of constitutional rights.
This Article argues that current developments in abortion law suggest a way forward that hinges neither on defending nor abandoning the constitutional right to abortion. Scholars in the field of reproductive justice have called for a move beyond constitutional doctrine for a long time. That shift, with its attention to structural and systemic inequalities, has never seemed more urgent—or more possible—than it is right now.