With This Supreme Court, What’s Next for Abortion Rights?

With This Supreme Court, What’s Next for Abortion Rights? 1

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In 1973, Americans gained a constitutional right to abortion. In 2022, they may lose it.

Those are the stakes of a case that the Supreme Court heard last week, Dobbs v. Jackson Women’s Health Organization, involving a Mississippi law that bans nearly all abortions after 15 weeks of pregnancy.

The case is a direct challenge to the 1973 precedent Roe v. Wade, which established that states could not ban abortions before fetal viability. That core ruling was upheld in the 1992 case Planned Parenthood v. Casey, albeit in a weaker form that enabled states to enact restrictions short of outright bans. (The ban that Texas passed this year on most abortions was designed with an unusual enforcement mechanism to circumvent these precedents; it is being challenged in the lower courts.)

If the Supreme Court decides to overturn Roe, and Casey with it, in June, 22 states would almost certainly and swiftly outlaw abortion.

And what then? I asked a group of legal scholars, researchers and writers for their thoughts about what Roe’s fall might mean for the future of reproductive rights, the politics of abortion and the law’s treatment of other civil liberties. Here’s what they had to say.

Leslie Reagan, professor of history and law at the University of Illinois at Urbana-Champaign and the author of “When Abortion Was a Crime” and “Dangerous Pregnancies.”

Unlike in 1973, today it is possible and common to induce an abortion using F.D.A.-approved pills. But medication abortion cannot prevent the serious public health consequences of overturning Roe and Casey. Getting the pills requires knowing about them, awareness of pregnancy at an early stage, and the means to purchase them.

People who rarely run into roadblocks may imagine this is easy, but menstruation is irregular for many, so even recognizing pregnancy is difficult. Others — particularly adolescents and people living in repressive anti-abortion contexts — may not be able to find safe and reliable information.

Just as there are fake clinics set up by the anti-abortion movement, there will be fake websites offering pills and abortion help run by anti-abortion activists or state officials to catch people violating new laws. Others will sell useless items to profit from desperation.

Even if people successfully find the pills, the police have new means of enforcing anti-abortion laws. Women, medical personnel and reproductive justice advocates will face increased surveillance. State authorities can now trace people’s searches for information about abortion, phone calls, travel, health status and spending in ways they never could before thanks to computers, social media and the phones people carry, which may include menstruation tracking apps.

Law enforcement will have volunteer assistance. The anti-abortion movement can be expected to switch from harassing people at abortion clinics to surveilling suspected providers and abortion seekers and sharing that information with the police; indeed, the Texas law banning abortion at six weeks relies upon exactly this voluntarism for enforcement.

Interrogating dying women, raiding clinics and forcing gynecological exams — the old policing methods — will be revived even as new ones will be created. A post-Roe future will not exactly duplicate the past, but we can predict much of the result.

Erika Bachiochi is a fellow at the Ethics and Public Policy Center and author of the book “The Rights of Women: Reclaiming a Lost Vision.” She co-wrote a supporting brief submitted to the Supreme Court arguing that Roe v. Wade has hindered gender equality.

The richest country in the history of the world has looked for far too long to readily available abortion as the appropriate response to female poverty. This is Margaret Sanger’s 20th-century eugenic legacy, even if her own advocacy for birth control was intended as a prophylactic to abortion, not the gateway it ineluctably became. In Roe’s absence, concerns about women’s economic welfare would have to be addressed as they should: by ending poverty, not unborn lives.

Our country’s earliest women’s rights advocates well understood that no techno-pharmacological solution could ever equalize the asymmetries inherent in sexual intercourse — asymmetries that over the course of history have far too often left women pregnant, poor, abandoned and alone. But these women did not aim to suppress female fertility or reject its consequences outright. They fought for structural changes in education, law, marriage and the workplace, and against the male sexual prerogative instead.

Our country is in the midst of a racial reckoning that has brought much-needed attention to continuing disparities in wealth, income, health, housing and education, among other categories. But until that reckoning recognizes that in New York City alone, for instance, more Black children are aborted than are brought to term, it will not have gone deep enough.

Sangerian efforts to suppress the fertility of the poor and people of color do nothing to bring about structural change that real justice requires: universal access to health care; dignified work with just wages and full benefits; increased economic support for child-raising families and the removal of marriage penalties; criminal justice reform; foster care reform; school choice; funds for community colleges; and many more.

Once we are on the other side of this fifty year legal battle over Roe, we would all do well to recognize that the answer to injustice against vulnerable people is not abortion — itself an injustice against the vulnerable — but systemic structural change instead.

Michelle Oberman, professor of law at Santa Clara University School of Law and author of “Her Body, Our Laws: On the Frontlines of the Abortion War From El Salvador to Oklahoma.”

Historically, people rarely were prosecuted for abortion, but as Texas’ abortion ban made explicit, even if 21st-century abortion crimes don’t target those who end their pregnancies, they will target those who aid them: men, parents, friends, strangers.

Common forms of abortion support will become suspect: providing financial assistance, transportation or even advice. Depending upon the jurisdiction, such assistance will risk prosecution as an accomplice to illegal abortion, and perhaps even homicide.

But that’s just the beginning. If states deem embryos and fetuses “children,” and pregnant patients “mothers,” the man who impregnates becomes a “father” who owes a duty to support and care for the fetus. Failure by either “parent” to protect the pregnancy (by avoiding abortion or even alcohol exposure) becomes child neglect.

These liabilities will breed conflict. Any violence, since it would involve a pregnant victim, becomes child abuse. As we know from the work of National Advocates of Pregnant Women, any abortion-related prosecutions will overwhelmingly target the Black and brown people who already live under disproportionate state scrutiny.

Criminalizing abortion also implicates health care providers, who will struggle to balance ethical and legal obligations to their patients with new ones to the state. Despite their obligations to patients, they may feel compelled to report those they suspect of having abortions or taking risks with fetal well-being.

Enforcement needn’t be common for fear of it to take root. In El Salvador, where abortion is banned, no doctor has been prosecuted for ending an ectopic pregnancy. Yet obstetricians routinely make the patient wait until the fallopian tube explodes and the embryo dies before intervening to save the mother.

Indeed, this is how our abortion laws will primarily work: by distorting the moral compasses of all those implicated, incentivizing them to join in the state’s wholesale abandonment of pregnant people.

David Brooks, a columnist for The New York Times.

Abortion is such a fraught issue, it’s hard to think about it strictly in political terms. But if we limit ourselves to political prognostication, then my suspicion is that the national Democratic Party would thrive in a post-Roe world. I do not say that because I believe there will be a surge of pro-choice voters to the polls. I say it because the central arena of conflict will have shifted. The crucial decisions would be made mostly on the state level, not on the national level or in the courts.

If abortion were even partly removed from national politics, then it’s possible that national politics would be transformed. There are just a lot of single-issue voters who back Republican presidential candidates because they are pro-life. I don’t believe Ronald Reagan or Donald Trump would have been elected without single-issue pro-life voters. Some of those voters would stay Republican anyway, but some might drift over to the Democrats.

I also think our politics would be slightly depolarized. The punishing Supreme Court nomination battles — from Robert Bork to Clarence Thomas to Brett Kavanaugh — have really been about Roe to a significant degree. Perhaps if Roe were out of the picture these battles, and the culture war that feeds off them, would be less heated.

Reva Siegel, professor of constitutional law at Yale Law School and co-author of a supporting brief submitted to the Supreme Court arguing that the Mississippi abortion law violated the Equal Protection Clause of the 14th Amendment.

Roe v. Wade held that the right to privacy encompassed a woman’s right to make decisions about abortion. But advocates have long argued that both liberty and equality guarantees of the 14th Amendment protect the abortion right. These claims will grow if Roe is overturned.

Equality arguments contest the double standards about sex and parenting that make abortion restrictions seem reasonable as a way of protecting unborn life. Abortion bans reflect and reinforce inequalities — along the lines of sex, race and class — in the conditions in which women conceive, bear and rear children. Historically, abortion bans focus a community’s attention on the need to control women, rather than many other choices a community can make to provide for the health of future generations.

The Mississippi law, for example, claims that banning abortion after 15 weeks will protect the health of women (the “maternal patient”) as well as potential life. But the state had many non-coercive ways to reduce abortion and to protect the life and health of women and future generations: sex education, contraception, health care and social assistance, which can help those who wish to avoid parenthood as well as those who need assistance in raising healthy families.

Instead, a state with high maternal mortality rates and the highest infant mortality rates in the nation turned away federal funds that it could have used for such programs, and singled out for coercion pregnant women refusing motherhood. Equality arguments, unlike privacy arguments, insist that we evaluate the rationality and constitutionality of abortion restrictions with attention to this broader social context.

Whatever damage the court inflicts on Roe, Americans will continue to assert their understanding of the Constitution — in courts, legislatures and in the streets. And this conflict will give birth to new accounts of the abortion right, as a right of liberty, equality and reproductive justice in the 21st century.

Melissa Murray, professor of law at New York University School of Law and co-author of the same supporting brief.

A decision overruling Roe v. Wade would threaten an entire line of jurisprudence rooted in the 14th Amendment’s guarantee of liberty. This line of cases goes back to a 1923 decision guaranteeing parents the right to raise their children free of undue state intervention, and it includes the right to marry, the right to engage in adult sexual relationships and the right to use contraception.

In 1992’s Planned Parenthood v. Casey, the court emphasized this jurisprudence’s connection to abortion rights, insisting that the very essence of “liberty is the right to define” one’s self through the selection of a partner and the decision to become a parent. Such decisions, the court cautioned, are so fundamental to the person that they should not be made “under compulsion of the state.”

The problem, of course, is that the right to define oneself, like the right to abortion, is not expressly enumerated in the Constitution. Which means if Roe falls, it will imperil these other rights of intimate life — the right to marry the person of your choice, the right to procreate on your own terms — that have been inferred from the Constitution’s basic principles and protections.

In a brief submitted in support of Mississippi, the conservative lawyers Adam Mortara and Jonathan Mitchell, the architect of Senate Bill 8, the Texas law that bans abortion at just about six weeks, made clear what is next in a post-Roe world: “The news is not as good for those who hope to preserve the court-invented rights to homosexual behavior and same-sex marriage.” After all, these “judicial concoctions” are, as Mortara and Mitchell put it, “as lawless as Roe.”

Sonia Corrêa, a research associate at the Brazilian Interdisciplinary Association for AIDS in Brazil, where she is a co-chair of the Sexuality Policy Watch program.

As someone who has fought for abortion rights since the late 1970s, I vividly remember how Roe v. Wade propelled the global political legitimacy of abortion rights. Today, the United States risks becoming one of the very few countries in the world to restrict abortion rights in the 21st century.

Yet the image of the United States as an outlier from the rest of the world, while technically accurate, conceals the role it has played in advancing anti-abortion forces abroad. The hidden thread began with the Helms amendment, adopted right after Roe v. Wade to ban the use of foreign assistance funds for abortion. The thread continued with the Gag Rules of 1984, 2001 and 2017, which blocked funding to foreign health organizations if they even counseled women about abortion.

Furthermore, since the 1980s, national struggles for abortion rights, particularly in Latin America, have been impaired by an influx of U.S. anti-abortion organizations that work in tandem with local groups that share their views. The current global map of abortion laws in which the potential U.S. regression will appear as an exception was, in fact, achieved through fierce battles against the same forces that worked to overturn Roe v. Wade.

What happens to abortion rights in the United States will continue to influence what happens to them elsewhere. Across Latin America, for example, the signals that the Supreme Court is sending in the Dobbs case will most likely energize local opposition to the recent wave of abortion law reforms there. In Brazil, my own country, where most abortions are a crime, restrictions may grow even more severe. More than ever, abortion rights must be viewed and bravely fought for as a transnational, interdependent and nonnegotiable feminist claim.

Do you have a point of view we missed? Email us at [email protected]. Please note your name, age and location in your response, which may be included in the next newsletter.

“I Couldn’t Vote for Trump, but I’m Grateful for His Supreme Court Picks” [The New York Times]

“When We Talk About Abortion, Let’s Talk About Men” [The New York Times]

“The Abortion I Didn’t Have” [The New York Times]

“We’re Not Going Back to ‘Before Roe’” [Slate]

“The Pro-Life Movement Plans for a Future Without Roe” [The New Yorker]