December 5, 2021 Liz Borkowski, MPH 1Comment

On December 1, the Supreme Court heard oral arguments in the case Dobbs v. Jackson Women’s Health Organization, and the questions from the Republican-appointed justices indicated that the Court is likely to overturn Roe v. Wade. The case is about a Mississippi law that bans abortions after 15 weeks’ gestation—a law clearly at odds with past Supreme Court decisions that gave women and other pregnancy-capable people some measure of autonomy over our reproductive lives. But, because of Senate Majority Leader Mitch McConnell’s hypocrisy and Senators’ willingness to overlook nominees’ pretenses of objectivity, the Court now seems ready to trample settled law in order to decimate reproductive rights.

With its 1973 Roe v. Wade decision, the Court concluded that the constitutional rights to privacy and liberty protect the right to terminate a pregnancy. The decision prohibited states from banning abortion before fetal viability—a point that many states today consider to be 23-24 weeks, though it’s a blurry line. In the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision, the Court retained Roe’s core principle that states may not prohibit abortion prior to viability but decided that states could pass laws that restrict abortion access as long as they didn’t impose an “undue burden.”

Since the Casey decision, many states have passed mounting lists of abortion restrictions, such as mandatory delays of as much as 72 hours between an initial appointment and an abortion procedure, and targeted regulation of abortion providers (TRAP) laws that make it increasingly difficult for abortion providers to stay in business (Jackson Women’s Health Organization is the only abortion clinic in Mississippi today). These barriers are in addition to the financial barriers posed by the Hyde Amendment, which prohibits Medicaid funding for abortion and most heavily burdens Black and brown women. As a result, the right to an abortion that Roe enshrined is out of reach for many who live in states hostile to abortion and who don’t have the resources to travel long distances, take multiple days away from work and family responsibilities, and spend several hundred dollars. Still, the right exists, and abortion funds and other forms of support can often help those seeking abortions to overcome the barriers that states erect.

If the Supreme Court upholds Mississippi’s 15-week ban, it will have overturned Roe v. Wade’s prohibition against bans prior to fetal viability. During oral arguments, Mississippi solicitor general Scott Stewart invited the Court to go even farther and formerly overrule both Roe and Casey—in other words, void the right to abortion altogether rather than allowing abortions prior to 15 weeks and pretending that they’ve reached some sort of compromise. “Chief Justice John Roberts, Amy Coney Barrett, and alleged attempted rapist Brett Kavanaugh all appear to be invested in finding some way to overturn the fundamentals of Roe without having to write it that way,” writes The Nation’s Elie Mystal. But there can be no compromise when it comes to abortion rights, explains Rewire News Group’s Imani Gandy:

You can’t “both sides” abortion. You can’t “both sides” human rights. Either a person has the fundamental human right to bodily autonomy or they don’t.

Not Just Wrong, But Harmful

In addition to the fact that abortion access is central to autonomy, banning it would have awful consequences for public health and for equity more broadly. The amicus brief from 547 deans, chairs, scholars, and public health professionals, the American Public Health Association, the Guttmacher Institute, and the Center for U.S. Policy cites some of the high-quality research that demonstrates this. (My George Washington University Milken Institute School of Public Health colleague Sara Rosenbaum led the team that wrote the brief, and I’m one of its signatories.)

The brief notes that health risks from childbirth are 14 times those associated with abortion and are higher among Black women, and that risks for adverse maternal, infant, and child outcomes are greater in unintended pregnancies. It cites findings from the landmark Turnaway study, which found a range of negative outcomes from banning abortion—for instance, that women denied wanted abortions are more likely than their peers who receive them to experience household poverty in the four years after birth and more likely to continue experiencing violence from the man involved in the pregnancy—as well as other high-quality research. The authors also emphasize abortion bans’ exacerbation of existing inequities: “any ban will disproportionately affect young women, women of color, and low-income women who live in families and communities already vulnerable to elevated health and social risks and reduced access to necessary health care.”

Several other briefs (some linked here), including one from Advocates for Youth and We Testify signed by 6,641 people who have had abortions, also point out the flaws and dangers of laws like Mississippi’s 15-week abortion ban. Center for Reproductive Rights attorney Julie Rikelman, who ably represented Jackson Women’s Health Organization during oral arguments, cited an economists’ brief that gathers research demonstrating that abortion legalization has improved women’s ability to participate equally in society. If the Republican-appointed Justices strike down abortion rights, it will be despite having been presented with extensive evidence that doing so will cause severe harm.

That harm will begin immediately after a decision overturning Roe v. Wade is issued. Several states still have pre-Roe laws on their books that will take effect once again, and others have passed “trigger” bans designed to take effect immediately or by quick state action if Roe is overturned. Others states have passed six- or eight-week bans that aren’t currently in effect but might be if the Dobbs decision allows for them.  Guttmacher Institute’s Elizabeth Nash and Lauren Cross report that 21 states have passed such laws, and another five have political composition or other indicators, such as recent actions to limit abortion access, that show they are likely to ban it as soon as they are able. In other words, abortion could soon become effectively unavailable in more than half of U.S. states within months of the Supreme Court overturning Roe v. Wade.

The harms won’t look exactly like they did before Roe. Those who can afford it—or who can get assistance from abortion funds facing soaring demand—will still travel to other states for care, and clinics in states like Illinois and California are already preparing for an influx of patients from states where abortion is no longer available. But the coat-hanger and back-alley imagery from pre-Roe days is much less relevant now that a safe and effective medication abortion regimen is widespread and will likely be a next step for many denied abortion services in their state. (Barriers to medication abortion still exist; advocates hope FDA will soon eliminate non-evidence-based hurdles to accessing the abortion drug mifepristone, but several states have imposed barriers to its use.) A threat that’s grown since the early 1970s, though, is prosecution for ending a pregnancy. Criminalization of pregnancy outcomes has been a growing problem that will only get worse—and, like other aspects of attacks on reproductive autonomy, it has and will continue to harm women of color the most.

Legitimacy and Public Perceptions     

During oral arguments, Justice Sonia Sotomayor pushed back against her colleagues’ attempts to handwave away evidence and current realities. She noted that in the three decades since the Casey decision, 15 justices of different backgrounds have affirmed the viability limit on prohibiting abortion, and the reason states are now trying to undo it is because there are new justices on the Court. “Will this institution survive the stench that this creates in the public perception that the constitution and its reading are just political acts?” she asked. (For more on how she eviscerated Stewart’s threadbare arguments about supposed new evidence regarding abortion, see this terrific Twitter thread from lawyer-activist Matthew Cortland.)

NYU law professor Melissa McCarthy, who clerked for Sotomayor when she was a judge, explains in a Washington Post piece that this initial question about public perceptions of the Court was aimed at Chief Justice John Roberts and the two newest justices, who Sotomayor hoped would uphold Roe in order to preserve the Supreme Court’s legitimacy in the public eye. “But within the first 30 minutes of oral arguments, it was clear that Sotomayor’s institutionally minded optimism had curdled … Kavanaugh and Barrett plainly seemed uninterested in compromising,” McCarthy writes. So Sotomayor began using her questions to communicate with the public at large. McCarthy describes the highlights:

In stark and bracing terms, she articulated the stakes for women, centering their voices and experiences in the debate. When Mississippi’s lawyer, Scott Stewart, suggested that the abortion question should be decided through state-level political deliberation, Sotomayor was quick to interject. “When,” she demanded, “does the life of a woman and putting her at risk enter the calculus?” When Stewart suggested that the viability standard should be abandoned because it was not specifically enumerated in the Constitution, Sotomayor reminded him that “there’s so much that’s not in the Constitution.” Indeed, as she recounted, the text says nothing about judicial review—the court’s duty to interpret the Constitution and “say what the law is.” That constitutional innovation, like Roe and Casey, was a result of judicial interpretation of the broader principles undergirding the document. And if Roe is struck down, she noted, other decisions that relied on similar logic—including those establishing a right to use contraception and a right to same-sex marriage—could fall, too.

Anti-abortion forces also seem to have adopted a new strategy based on the likelihood that a newly politically tilted Court is ready to eliminate abortion rights regardless of precedent. Law professors Michele Goodwin and Mary Ziegler point out in The Atlantic that neither the Mississippi law at issue here nor Texas’s horrendous SB 8 (which turns everyone into a potential vigilante to get around the current unconstitutionality of their six-week abortion ban) includes an exception for rape or incest. Such exceptions, they note, used to be “a rare source of consensus” in U.S. abortion politics, and the public still overwhelmingly favors them. Many anti-abortion activists never wanted such exceptions but GOP politicians supported them based on public support, Goodwin and Ziegler explain. Now, though, circumstances have changed: “Today the anti-abortion movement is ready to ask for what it wants, and the GOP—and its allies on the Supreme Court—is willing to give it to them.”

I attended the Center for Reproductive Rights-hosted abortion rights rally outside the Supreme Court before and during oral arguments, and I noticed a similar shift from the anti-abortion demonstrators. In the rallies I’ve attended there over the years, it’s been typical to have the anti-abortion demonstrators chanting into megaphones in an apparent attempt to drown out the abortion-rights speakers. They’ve normally been chanting anti-abortion slogans or calling for the confirmation of a justice likely to strike down Roe v. Wade. At the Dobbs rallies, though, the anti-abortion megaphone holders didn’t seem to feel the need to make their case to the public; instead, they stood directly behind us and kept up an unceasing stream of verbal abuse, calling us sinful whores who’d be going to hell and telling us we should close our legs and listen to our husbands. One of them even went so far as to say that although he’s against abortion, he thinks maybe some of us should have been aborted. So, clearly, no one is working to make sure that the anti-abortion crowd is sticking to a message that’s palatable to the public. But who needs to appeal to the public if the GOP and the Supreme Court will give them what they want?

The abortion rights opponents with the megaphones were often drowned out by the cheers of our crowd, though, as we heard from speakers about the ways they’re standing up for the rights of pregnant people to make their own decisions about whether, when, and how to grow their families. Renee Bracey Sherman, founder of We Testify and the new Liberate Abortion campaign, showed how powerful it is when people who’ve had abortions share their stories and help erase shame and stigma. Activists from Mississippi and other states where abortion access is under attack spoke about how they’re not just fighting laws that limit reproductive autonomy, but working toward a future in which people can flourish in healthy environments that help them raise the families they want to have. Members of Congress spoke about the Women’s Health Protection Act, which has passed the House and would protect the right of pregnant people to seek abortions and healthcare providers to offer abortion services.

Shout Your Abortion founder Amelia Bonow was one of four rally attendees who took mifepristone on the steps of the Supreme Court while leading the crowd in a chant of “Abortion pills are in our hands, and we won’t stop!” “Republicans might have the courts, but we are having abortions,” she told The Nation’s Amy Littlefield. “They will never, ever stop us. And they shouldn’t feel like they’ve won. Because they’ll never win.”

I’m not optimistic about how the Supreme Court will rule on Dobbs vs. Jackson Women’s Health Organization or about how states already rife with voter suppression and gerrymandering will respond. But I do know that an enormous and powerful group of activists, abortion providers, lawyers, researchers, and others who care about reproductive justice won’t stop fighting until every pregnant person has the right and ability to make their own decisions.

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