June 26, 2022 Liz Borkowski, MPH 0Comment

On Friday, the Supreme Court issued its decision in Dobbs v Jackson Women’s Health Organization and declared that there is no constitutional right to abortion. Three of the justices appointed by Trump (who lost the popular vote but won Mitch McConnell’s hypocritical collusion) and two others decided that those of us who are physically capable of pregnancy no longer have the right to determine whether or when we bear children.

In states with trigger laws banning abortion as soon as the Supreme Court would let them, clinic staff had to tell patients in their waiting rooms that they could not get the abortions they sought. Andrea Gallegos, administrator of Alamo Women’s Reproductive Services Clinic in Texas, told the 19th’s Chabeli Carrazana that it was a scene of “complete despair.” These patients will now be frantically seeking alternative ways to get the healthcare they’ve been denied. For some, that will mean travel to states where abortion remains legal but clinics are overwhelmed, journeys that demand money and childcare and time off work that many of them don’t have. People who already face barriers to care because of historic discrimination will be disproportionately harmed, including Black people and other people of color; Native women; lesbian, bisexual, trans, and nonbinary people; and youth. When forced to bear children against their will, Black and Indigenous women will be at particularly high risk of death.

Disregarding Evidence

One of the things that’s so enraging about this decision is that it completely disregards so much of the evidence presented to the Court. The decision asserts that it is hard to assess “the effect of the abortion right on society and in particular on the lives of women” – but that is obviously false.

High-quality research such as the Turnaway Study – a visionary research project based at the University of California, San Francisco that recruited women seeking abortions and has followed them for a decade – shows that those denied wanted abortions were more likely to be in worse situations years later, including poverty and violence from the man involved in the pregnancy. And, as the study’s lead researcher, Diana Greene Foster, explained in a recent opinion piece, “The data also show that women’s existing children suffer when women lose control over the circumstances and timing of subsequent births.” Amicus briefs submitted to the Court – including one from public health experts, which I signed – cited this research, as well as studies on the entrenched inequities that mean abortion bans will disproportionately harm Black women and other marginalized groups. Economists presented evidence showing that abortion legalization helped women’s education, labor force participation, and earnings, with the strongest impact for Black women.

Not only does the majority opinion ignore the extensive evidence of the harms that banning abortion will cause and the inequities it will entrench; it also pretends being forced to give birth is no big deal. It suggests that “modern developments” make it less problematic to ban abortion: federal and state laws ban discrimination on the basis of pregnancy; leave for pregnancy and childbirth exists; pregnancy-associated medical costs are covered by insurance or government assistance; and state “safe haven” laws let people put their newborns up for adoption. Anyone with access to a search engine can learn that federal and state laws have not succeeded in preventing discrimination against pregnant people, only about 19% of US workers have a paid family leave benefit, and giving birth is extremely expensive even for those with private insurance – not to mention a tremendous physical strain that is often traumatic.

This is not the only recent case where the Supreme Court demonstrated a cavalier attitude towards evidence. The New York State Rifle and Pistol Association v. Bruen decision that invalidated a large swath of gun laws days before the Court overturned Roe v. Wade made clear that the Trumpian majority will only consider evidence that supports their vision of the United States – one where would-be gun owners face few restrictions but those who are pregnant cannot make their own healthcare decisions. At Balls and Strikes, Yvette Borja explains the role of Justice Clarence Thomas, who authored the opinion, in this kind of thinking:

Whether a type of regulation fits within Thomas’ particular vision of “historical tradition,” it turns out, is answered by whether it supports the outcome that Thomas prefers. His opinion places great weight on anecdotes that, in his view, cast doubt on the legitimacy of gun regulations, and downplays those that indicate otherwise. Evidence of medieval-era traditions of gun regulation, for example, is too old to be relevant; so are colonial-era handgun laws, which “provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.”

For every bad fact, Thomas has an excuse to wave it away. Similar laws are not similar enough. More recent gun control laws are mere “outliers,” he says, and their “value in discerning the original meaning of the Second Amendment” is “insubstantial.” For this conservative supermajority, the only history that matters is that which allows them to treat the right to bear arms with “unqualified deference.”

Although the apparent unwillingness to consider evidence contrary to their preferred vision is a hallmark of both the Bruen and Dobbs decisions (the latter authored by Justice Alito), it’s notable that one prohibits states from passing the kinds of gun-control laws they consider necessary to protect existing people while the other invites them to pass laws more concerned with the wellbeing of fetuses than the people who have to carry them.

Legitimacy Lost

This selective attitude towards evidence and disregard for precedent make clear that the Justices who stripped the right to bodily autonomy from millions are motivated by politics. The Dobbs dissent – from Justices Breyer, Sotomayor, and Kagan – describes the many ways in which the majority opinion ignores long-established precedent, which until now the Court has considered to be of great importance and not something to be overruled lightly. “The majority barely mentions any legal or factual changes that have occurred since Roe and Casey,” the two cases that until Friday limited how far states could go to limit abortion rights, the dissenting Justices point out. “In the end, the majority throws longstanding precedent to the winds without showing that anything significant has changed to justify its radical reshaping of the law.” And the result, they make clear, is that this decision “undermines the Court’s legitimacy … In overruling Roe and Casey, this Court betrays its guiding principles.”

A Gallup poll conducted after the Dobbs decision had leaked but before it was issued found public confidence in the Supreme Court at a record low of 25%. Once lost, public trust is hard to restore, and I can’t imagine any way this incarnation of the Court can regain public confidence. As far as I’m concerned, this is now an illegitimate Court.

What Comes Next

The Dobbs decision is already causing suffering in the states that now ban abortion, and that list of states is set to grow in the coming weeks. The 16 states and the District of Columbia whose laws protect abortion rights will see a flood of patients who can’t get abortion care in their own states – though some of their home states will also seek to curtail pregnant people’s right to cross state lines. Others will seek medication abortions, either via services like Aid Access that provide online consultations and send drugs via mail, or by purchasing drugs online. Some will succeed – often at great expense and with great difficulty – in receiving the healthcare they seek, and others will be forced to give birth against their will.

Those who succeed in self-managing their abortions, as well as those who experience miscarriages, will face another threat: Surveillance and potential prosecution. Many women have already been prosecuted after having their pregnancies end in something other than birth, and we already know that Black people and other people of color are disproportionately likely to be targeted by law enforcement. “We have entered an era not of unsafe abortion but of widespread state surveillance and criminalization—of pregnant women, certainly, but also of doctors and pharmacists and clinic staffers and volunteers and friends and family members, of anyone who comes into meaningful contact with a pregnancy that does not end in a healthy birth,” warns Jia Tolentino in the New Yorker.

There are steps the Biden administration could take to improve access to some abortions in states that have eliminated people’s right to make their own pregnancy decisions – for instance, the administration could protect access to the medication abortion drug mifepristone and make clear that EMTALA, the federal law requiring emergency departments to treat patients experiencing medical emergencies, pre-empts state laws and requires that EDs provide abortions when that’s the kind of care required in emergencies such as miscarriages – and then back that up with enforcement. Congress has options, too, like passing a law prohibiting states from banning abortion – or, at minimum, prohibiting them from trying to enforce their abortion bans across state lines. And, as New York Times columnist Jamelle Bouie points out, Congress can remove Supreme Court justices and increase the size of the Court.

Like thousands of others, I showed up outside the Supreme Court on Friday to protest this unjust decision from an illegitimate Court. The mood was defiant, and it was clear that all of us are determined to make sure people who want abortions can get them, even if for the foreseeable future it will be harder and more complicated than it should be. People seeking abortions can go to https://www.ineedana.com/ (after setting up appropriate digital safeguards) and request assistance from the nationwide network of abortion funds, and the rest of us can donate to those funds as well as supporting organizations that work toward reproductive justice. At the same time, we can and should grieve for all we’ve lost – access to a human right, and trust in the Court that was supposed to consider the evidence and respect rights that their predecessors confirmed.

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