(This was first published on 4 May 2022. It has been republished from The Quint's archives over US Supreme Court overturning Roe v Wade)
For almost five decades, women in the United States have had a largely unrestricted right to abortion across all fifty states.
That freedom may be taken away from them if the Supreme Court decides to overrule a landmark 1973 judgment.
The immediate impact of Roe vs Wade being overturned is that the US federal government will leave it to the states to decide abortion rights. Center for Reproductive Rights data shows that 23 states will institute bans, with trigger laws (bans that go into effect as soon as Roe vs Wade ceases) in 13 of them.
The Guttmacher Institute, an abortion rights advocacy group, considers 26 states as certain or likely to ban abortion.
'We Are Gearing Up,' Say Doctors and Lawyers
In anticipation, abortion providers in New York and California are rushing to expand capacity, adding more physicians and staff.
New York-based Dr Meera Shah, the chief medical officer of Planned Parenthood (Hudson Peconic), says:
“We are gearing up. We are building up capacity, increased hires, building more clinics, changing protocols to accommodate more patients, more abortion funds.”
She is proud to belong to a progressive state like New York, which prides itself on abortion care.
The ramping up, which started when the ripples of the September 2021 abortion ban in Texas were felt in neighbouring states and beyond, is now in full swing.
“Some states have very few abortion clinics, some just one. We have had patients come all the way to New York from Texas to receive abortion care. After the Dobb vs Jackson outcome 26 states will likely restrict abortions and 24 progressive states will provide access. We are working hard,” adds Dr Shah.
States like California, New York, Oregon, and Washington have protected abortion rights by enacting them into state law.
California is preparing an amendment to its constitution to protect access to abortion in the state. “We can’t trust SCOTUS (Supreme Court of the United States) to protect the right to abortion, so we’ll do it ourselves,” Governor Gavin Newsom tweeted.
The US Supreme Court heard arguments in the Dobb vs Jackson Women’s Health Organisation (the only abortion clinic in the state of Mississippi) in December 2021. The case concerns the constitutionality of a Mississippi state law prohibiting abortions after the fifteenth week of pregnancy, filed by Jackson Women’s Health Organisation. A local court had thrown out the case, but when Mississippi took it to the US Supreme Court, the court took it up, going against the precedent set by Roe vs Wade, which legalised abortion freedom in 1973.
This gave a ‘green light to abortion extremists’ and conservative legislatures in other states to start enacting abortion curtailing laws, also emboldened by the current majority of conservative justices in the US Supreme Court. The Court is expected to issue a ruling in the Mississippi case, which presents a major challenge to the landmark law that enshrined a woman’s right to terminate a pregnancy, established in the 1973 Roe vs Wade ruling.
Protest in New York.
(Photo Courtesy: Twitter/@Roops22)
Abortion Allies Vow to Keep Fighting, Even Without the Safety Net of Roe vs Wade
Abortion allies have “faced a well-funded, long-established anti-choice movement that has spent years honing its strategy to churn out disinformation,” says Mini Timmaraju the president of NARAL Pro-Choice America in her annual report. Reproductive rights advocates have been in these court battles for decades – before and after US legalised abortions in 1973.
There has never been a time when the conservative anti-abortion lawmakers have stopped trying to make abortion care difficult or impossible to access. In response, thousands of lawsuits have continued to be filed in multiple states by various state-level and national reproductive choice groups over the years, and won.
The victories were made possible by the precedent set by Roe vs Wade, which is now under threat as the Supreme Court, even though denouncing the leak of the draft meant for internal circulation, indicated that it may overturn it.
The final vote by the Supreme Court justices in late June or July will decide the final fate of whether abortion remains legal in the US.
Interim President and CEO of Planned Parenthood (Greater Plains), Dr Emily Wales said at a press conference, “We've seen bans before, but the courts have stepped in and guarded legal protections. Those protections may soon be a thing of the past."
The world has looked on as Americans who fought hard to gain access to abortion, persevered to keep the constitutional protection for the procedure, are now battling to hold on. Apart from expanding vital medical services and abortions funds in liberal ‘blue’ Democratic states, pro-choice advocates plan to continue to battle state legislatures, which will withdraw abortion access if the bedrock law is overturned.
Dr Emily Wales said, “State courts have struck down abortion bans citing protections other than Roe before. We will continue fighting for abortion access in each state.”
But if abortion becomes illegal in the US, on what legal basis will activists fight? And how will states like New York and California continue to provide abortions?
Well, the US constitution gives basic rights over and above which states are then entrusted to add rights and freedoms.
A lawyer who wished to remain anonymous explained:
“States cannot go below the federal constitution provisions. State courts can go above that to provide more rights and freedom. The federal constitution is the floor for civil rights, not the ceiling.”
This allows state constitutions and legislatures to make their own rules, and abortion access activists to keep marching.
“Even if we don’t have Roe (vs Wade), we will still continue to file challenges. They will look different. The US constitution gives us a lot of possibilities and core protections. Various arguments can be made about commerce, economic liberty, racial discrimination, etc, to prove that restrictive laws are unconstitutional. Living in post-Roe world will be very difficult, we will keep challenging, but might not be always successful,” said the advocate for reproductive rights.
Electoral Politics vs Women's Rights: The Midterms Game
Seven out of ten (as per NARAL Pro-Choice) Americans support abortion freedom. A Washington Post-ABC conducted in the last week of April 2021 noted that Americans, by a 2-1 majority chose Roe to be upheld.
The conservative-majority US Supreme Court seems out of step with the American public. Activists streamed out onto the streets after a leaked Supreme Court draft on Roe vs Wade was published in the media, bringing the contentious issue again at the forefront of American politics.
"I believe that a woman's right to choose is fundamental," said President Joe Biden, adding, "Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned."
Speaker of the House of Representatives Nancy Pelosi along with Senate Democratic leader Chuck Schumer said in a statement that conservative justices have "lied" to the American people because during their confirmation hearings for the Supreme Court, they repeatedly said Roe is "precedent" and the "law of the land."
Abortion access will fire up supporters to vote in the upcoming midterm elections in which Democrats are facing enormous political headwinds with inflation running high.
The outcome of the polls will decide the balance of the US House and Senate (which impacts all federal laws and appointments to come up before Congress) for the remaining two years of the Biden presidency.
Reproductive rights champions know a lot is at stake especially as electoral politics seems to be taking precedence over women’s rights.
The lawyer added, “The red states will not sit on their laurels after banning abortion. They will enact further laws to criminalise providers who travel to other states to offer their services, cancel licences for those physicians who provide abortion care in other states, make it unconstitutional for residents of their states to get an abortion elsewhere.”
It is a scary indicator of what can happen in a country where one half the country is doing everything to uphold abortion rights, and the other half is trying to ban all of it.
As Mini Timmaraju of NARAL Pro-Choice America said, “If the court can over turnover a 50-year precedent, they are coming after gay civil marriage, they are coming after contraception, it is 100 percent to be expected.”
Hence these organisations don’t want to leave any stone unturned.
With a $150 million electoral campaign plan for the US midterms, the three leading reproductive health and pro-abortion groups are making their intentions clear.
NARAL Pro-Choice America’s tweet declared, “We are joining @EmilysList and @PPact in an unprecedented effort and massive electoral push to combat the dangerous, unprecedented state-level attacks on abortions rights across the country.”
NARAL’s VP of Communications & Research Kristin Ford says, “We are pushing to elect champions for reproductive freedom up and down the ballot, push back when lawmakers try to roll back or eliminate access, expand access and safeguard the right to abortion whenever and wherever we can.”
Mini Timmaraju tweeted, “When you come for our rights, we will come for your seats.”
What Next for the US?
In spite of almost 50 years of abortion being legal, the US continues to be a country where abortion care lobbyists constantly tackle stigma and misinformation around abortion, manage serving women with an extremely low number of clinics and abortion-care trained physicians, and provide access to abortion funds as the law doesn’t allow federal dollars to be used for terminating pregnancies.
Texas was able to use a legal loophole to get around Roe vs Wade to enact a citizen-enforced abortion ban.
Priya Desai of Oklahoma Call for Reproductive Justice says, “We saw a dramatic increase of patients from Texas, which led to Oklahoma patients getting funnelled into Kansas. There was a sudden, 2500 percent increase in patients coming for abortion care to Oklahoma from Texas."
With Roe vs Wade all set to become legally irrelevant, the hundreds of women who have been forced to travel out of Texas to terminate their pregnancies in the last eight months since the state banned abortion, will seem like a small number compared to what is to come.
Women will be forced to keep pregnancies for lack of resources to travel, more so economically disadvantaged women, who make up more than 75 percent of those who seek abortion care. The rest of the world is watching 21st Century USA return to the era of illegal abortions as legal bans do not reduce the demand for terminating pregnancies.
(Savita Patel is a San Francisco Bay Area-based journalist and producer. She reports on Indian diaspora, India-US ties, geopolitics, technology, public health, and environment. She tweets at @SsavitaPatel.)
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