Today marks the 49th anniversary of the Supreme Court decision in Roe vs. Wade that guaranteed the right to an abortion. Will it be the last?
Since 1973, when the court ruled that there was a right to abortion, derived from the Constitution, up to the point of viability of the fetus outside the womb, the Supreme Court has reaffirmed its decision again and again — and again. Now, that right appears to be under assault from the court that protected it all these years.
Last month, the justices heard arguments in a case about a law so obviously unconstitutional (at least right now) that it is unimaginable that the court would have taken the case even five years ago. (Of course, it was a different court then. Today there are six conservative justices, several of them open about being personally opposed to abortion.)
The state of Mississippi passed a ban on abortions after 15 weeks — which is about nine weeks before viability. After the law was struck down by a federal court, the state asked the Supreme Court to either overturn Roe vs. Wade or allow states to pass pre-viability abortion bans. The conservative justices, during oral arguments last month, seemed to be open to doing just that. A decision is expected around June.
To me, all this seems unthinkable. Impossible.
Never have I imagined that Roe would be in danger of being overturned or irrevocably diminished. For all the years that I was a woman of child-bearing age, I took for granted that I had a right to an abortion as much as I had a right to vote. It was a constant. I recall no conversations with friends or colleagues where we seriously debated or worried whether the right to an abortion would be taken away.
With access to birth control and safe, legal abortion, we felt assured of our ability to control our destinies, to the extent that they were connected to avoiding getting pregnant or deciding not to carry a pregnancy to term. For a woman, having that control over your body is as inalienable as a right can get. Nearly 1 in 4 women in the U.S. will have an abortion by age 45, according to a 2017 report in the American Journal of Public Health by researchers from the Guttmacher Institute, which studies abortion policy and statistics and supports reproductive health and abortion rights.
I am the only person I know who still holds out hope that the justices’ questions and comments during oral arguments over the Mississippi case in December did not signal their willingness to abandon precedent and throw over their predecessors’ rulings, but instead were simply probing, provocative inquiries.
When Chief Justice John G. Roberts Jr. asked why 15 weeks wasn’t enough time to get an abortion, perhaps he was persuaded by the answer from Julie Rikelman, the lawyer from the Center for Reproductive Rights, who said that not all women who want an abortion are able to get it that soon.
So I am torn between hoping that Roe will stand, undiminished, and mourning over the possibility that the Supreme Court will overturn a nearly half-century precedent that women have come to rely on in determining their futures. That would be a miscarriage of justice for political reasons that, as Justice Sonia Sotomayor said, would leave “a stench” over the high court.
But I admire how advocates for abortion rights have not allowed themselves to mourn. If Roe is overturned, the right to an abortion will be decided by state legislatures. California has some of the most robust laws protecting abortion rights in the nation. But there are 21 states with bans on abortion ready to go. An additional five states are expected to enact such laws.
Organizations like the National Network of Abortion Funds, a network of 90 local grassroots groups that provide funding and support for women trying to get abortions, are ramping up their efforts. “We want to be the antidote to helplessness,” says Debasri Ghosh, the managing director of the network.
But as Ghosh and others note, they have been doing this work for years as states have passed more than 1,000 laws to severely limited access to abortion, particularly for women with little means. In many cases, those are Black and brown women. “In the last 10 years state legislatures have really legislated abortion out of existence in many cases” said Destiny Lopez, co-president of All Above All, a group that focuses on helping Black, Latino and low-income women already struggling to get abortion services.
Whether or not the Supreme Court overturns Roe, the presence of bad state laws alone underscores the need for Congress to pass the Women’s Health Protection Act, which would ensure a national right to abortion and outlaw burdensome state restrictions. (It has already passed the House.) Additionally, Congress needs to get rid of the Hyde Amendment, which bans the use of federal funds for abortion for people enrolled in Medicaid and Medicare.
That hurts the lower-income women who need financial help the most to secure an abortion.
If we can’t rely on the Supreme Court to protect the right of women to control their own bodies, then the federal government must do it.
Carla Hall is an editorial board member for the Los Angeles Times.