by Joey Yap
On June 23, the Supreme Court struck down a century-old New York gun law which prohibited the carrying of concealed firearms in public without a license. Second amendment and all that jazz. As was written in the court opinion, “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need…it is not how the Second Amendment works when it comes to public carry for self-defense.”
If you’ve been following American news, then you might be wondering if this statement contradicts certain abortion laws that have been enacted by certain states in recent times, such as the Texas Heartbeat Act, which effectively bans all abortions past 6 weeks into conception; the only exception being given to those who are at medical risk. Isn’t that a special need?
Fast forward one day and Roe v. Wade has been overturned by that very same Supreme Court.
It feels like the awful punchline to an awful joke made by an awful comedian 50 years too late, as they look around the room, smiling, waiting for the laughter and applause. And there is laughter—a third of the room is jubilant, cheering for the end of legal abortion. It makes me sick.
Context. Roe v. Wade was the landmark reproductive rights case decided in 1973 which saw the Supreme Court vote 7-2 that the right to abortion was protected by the Constitution, specifically the Fourteenth Amendment. It was a watershed moment for the nation at the time, yet the decision has come under heavy fire from anti-abortionists for the half-century it has existed. In fact, this isn’t even the first time the Supreme Court has tried to overturn the remarkably controversial ruling. In 1992, the Court came close to accomplishing that exact goal as they deliberated over Planned Parenthood v. Casey. The case, which saw the Court uphold Roe in the end (albeit with more contextually specific restrictions), was very nearly the fall of Roe as we knew it; only saved from demise when Justice Anthony Kennedy joined with the pro-abortion bloc at the eleventh hour to co-author a more moderate opinion on the matter.
But there would be no savior for Roe this time. In June 24’s decision on Dobbs v. Jackson, the Court voted 5-4 to overturn Roe and Casey. Women all across the country woke up to the news that their reproductive rights were no longer, well, rights. Not conferred by the Constitution.
The Court majority’s argument in Dobbs boils down to an unconventional interpretation of the Constitution. They argue that, because reproductive rights aren’t explicitly listed in the Constitution and only implicitly derived from the Fourteeth Amendment, and since most states banned abortion before Roe was enacted, then that must mean that such reproductive right is not “deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty,” and thus not guaranteed under the Constitution.
History and tradition. Yes, these people really just said that abortion isn’t a fundamental right because it likely never even crossed the minds of the people who wrote the Constitution. It seems that those who wanted to overturn Roe really romanticize 19th century ideologies.
I’ll just let the dissenting justices (comprising Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor) speak for themselves: “[T]he majority emphasizes over and over again…If the ratifiers [of the Fourteenth Amendment] did not understand something as central to freedom, then neither can we. Or said more particularly: If those people did not understand reproductive rights as part of the guarantee of liberty conferred in the Fourteenth Amendment, then those rights do not exist. As an initial matter, note a mistake in the just preceding sentence. We referred there to the “people” who ratified the Fourteenth Amendment: What rights did those “people” have in their heads at the time? But, of course, “people” did not ratify the Fourteenth Amendment. Men did. So it is perhaps not so surprising that the ratifiers were not perfectly attuned to the importance of reproductive rights for women’s liberty, or for their capacity to participate as equal members of our Nation.”
Yet times have changed. When the Fourteenth Amendment was written, neither African-Americans nor women had the right to vote; to strip that right away now would be regarded as lunacy. To return to the topic of abortion: the majority of Americans today believe that abortion should remain legal in all or most cases, and depending on the poll you look at, as much as 70 percent of the population opposes overturning Roe. To willingly ignore all this evolution of ideologies over the past two centuries and return to an era when White men disregarded the rights of everyone else is simply making a mockery of the country.
To be pedantic, the court decision doesn’t outright ban abortion. It merely deferred the job to individual states. Yet it may as well have in over half the country—22 states have trigger bans or pre-Roe abortion bans that would take effect soon after Roe fell, and the Guttmacher Institute, a leading research organization on sexual and reproductive rights, categorizes 4 other states as being likely to implement abortion bans based on their political composition. Just 2 days after the Dobbs decision was published, abortions have already completely stopped in over 10 states, with more inevitably coming in the next few days or weeks.
Let’s take a step back. Before Dobbs effectively ended abortion in half the country, what percentage of women in America do you think would obtain an abortion before the age of 45? If you answered 24 percent, congratulations, you’re spot on. If that number is significantly higher than what you expected, you may find comfort in knowing that you’re hardly alone: 49% of American adults incorrectly say that less than 10% of women have had abortions. The same poll found that almost two-thirds of American adults knew someone who had received an abortion. Needless to say, abortion is an almost ubitiquous experience in America and nowhere near the rarity it is made out to be, which makes the Supreme Court decision even more absurd.
In effect, the Supreme Court has declared war on women. You have no control over your own body, they say from their high seats. As of 2019, 58% of all women of reproductive age lived in states which had hostile policies towards abortions; with most of these states poised to ban abortions, they will have to travel state lines if they seek an abortion. This puts many additional burdens on potential abortion patients in these banned states: they not only have to afford travel costs (not to mention just how uncomfortable and taxing travelling long distances with a fetus in your body is), they also likely have to take more time off work for the traveling, and what of those with children at home and no other place to send them to temporarily care for? For most of the people seeking abortions, it’s just too much, especially when existing studies suggest that over half of all abortion-seeking women live below the national poverty line, and over three-quarters don’t even have enough money to cover their daily expenses.
One thing is clear: the fraction of people who want an abortion but can actually obtain one will further decrease. Not just that, but the ones that will hurt the most are the ones that are already at a disadvantage to begin with—the low-income, the ethnic minorities. Marginalized groups who already face considerable difficulties in obtaining abortions will become further marginalized with the Court’s new ruling. As an example, a recent study estimates that in the event of a complete ban on abortions across the country, pregnancy-related deaths will increase by 21%, with non-Hispanic Black women suffering the most at a whopping 41.7% rise in deaths.
Even for those who can afford all the heightened costs of a post-Roe abortion, their options for abortions in another state may end up in jeopardy, especially after a certain state’s lawmaker floated the idea of making out-of-state abortions illegal too (I’m looking at you, Missouri).
Cisgender women are not the only people affected by the Court’s decision either; abortion services are utilized by everyone with a uterus who can thus become pregnant, such as queer women, transgender, and nonbinary individuals. Dobbs will only excarcebate the barriers that this particularly discriminated group face when accessing sexual and reproductive healthcare services. For instance, it is estimated that only a quarter of abortion clinics in the country also provide transgender healthcare services, and with a portion of them guaranteed to shutter their doors after Dobbs, these populations will undoubtedly find it more difficult to access gender-inclusive abortion services. Critically, the aforementioned transgender healthcare services include hormone therapy and other forms of gender-affirming care, which are crucial to those communities. Experts in the field posit that less abortion clinics equates to less opportunities for queer people to access these services too.
As Roe fell, U.S. President Joe Biden pledged to protect the rights of abortion patients to travel out of state for abortion procedures, providing much-needed reassurance. According to an anonymous source for Bloomberg, the president has also “directed [the Health and Human Services Department] to make sure that mifepristone, an abortion drug, can be prescribed by telehealth and through pharmacies, and to make sure insurers don’t stop covering contraceptives, including emergency contraceptives.”
That’s cool and all, but the damage has already been done. Biden says it himself: neither he nor the current sitting of the Congress is capable of reversing the Supreme Court decision and bringing back nationwide protection to reproductive rights. The way the separation of powers has been maintained in the country has made it so that the president cannot necessarily veto what the Supreme Court has decided as law. Therefore, Biden’s executive powers can only offer limited help to those seeking abortions, along the lines of the aforementioned solutions. The Democratic senators’ open letter to Biden earlier this month outlines several other potential actions, including providing monetary and miscellaneous support for those seeking out-of-state abortions, allowing all family planning services to be covered by Medicaid, mobilizing federal resources, and even providing abortion access on federal property in states where the practice will become outlawed. Make no mistake, these are all brilliant ideas that will increase access to abortion in a post-Roe country, but still fall massively short of a return to the state of things only a week ago. Vox’s Ellen Ioanes puts it best: “All of these suggestions are workarounds; they’re not really a direct challenge to the issues presented in the Dobbs case.”
Congress, on the other hand, does hold the power to codify reproductive rights into national law, but sixty votes are required in the Senate to overcome a Republican filibuster (i.e. the right for senators to unlimited debate) and move ahead with voting. That’s not to say the Democrats have not tried; they’ve introduced two bills—the Women’s Health Protection Act of 2021 and 2022—in a gesture largely seen as merely symbolic. And as expected, they’ve both stalled out in the Senate. Neither side looks poised to reach that threshold of 60 seats in the Senate anytime soon either.
We knew this was coming, of course, when Politico leaked an initial draft of the Supreme Court’s decision to overturn Roe in May. Sure, some of us held onto the hope that the court of public opinion could create some kind of hell for the judges, and some more of us hoped that the leak would buy enough time for the government to do, well, something. Clearly that wasn’t the case. But we were warned of this outcome, long before even the leak itself.
“We knew this was coming in theory since [Justice Amy] Coney Barrett joined the court, and in practice since December,” Democratic strategist Christy Setzer said several days after the leak (December refers to the date when Dobbs was first heard in the Supreme Court).
We knew this was coming when, in the final presidential debate leading up to the 2016 presidential elections, Trump explicitly stated that he was pro-life (read: anti-choice) and would appoint fellow pro-life judges into the Supreme Court if he had the chance. In his words: “[Because] I am pro-life, and I will be appointing pro-life judges…if we put another two or perhaps three justices on…that will happen [i.e. Roe will be overturned].” And he got his wish. Throughout his tenure as president he snatched the opportunity to nominate and push through a grand total of three Supreme Court justices, making their majority unassailable.
Hindsight is 20/20, of course. But if we work our way back in time, through the sprawling webs of legalese shrouding the contentious issue of abortion, we can start to form a clearer picture of the systemic erosion to reproductive rights that has occurred throughout the past decade—maybe even more if you look further back. Since 2010, state-level policies meant to regulate abortion processes have been introduced in droves, primarily in Republican-held states. Many of these laws are composed of atomic pieces which may seem barely consequential on their own, but in conjunction with existing regulations act as a massive restriction on abortion access. Take Texas for example: even before their draconian 2021 Heartbeat Act, Texas’ abortion clinics and its residents’ rights were already under attack from a heap of regulations. As early as 2014, the list of regulations, sourced from the Guttmacher Institute, included:
- Facilities must adhere to a structural standard similar to an ambulatory surgical center
- Facilities must be within 30 miles of a hospital
- Abortions past 16 weeks from conception can only be done in a hospital
- Clinicians must be licensed physicians
- They must have admitting privileges at a nearby hospital
- They must make time for unnecessary visits from patients
- They must comply with outdated FDA protocols for medication abortion
- They can’t provide telehealth abortion
- Patients must receive abortion counseling which is designed to discourage abortion
- They must perform an ultrasound, and the clinician has to show them the ultrasound image
- They must wait 24 hours after the ultrasound before they can get an abortion
- They must make multiple trips to the abortion provider
- Minors must have parental consent for an abortion
- Abortions 20 weeks after conception are banned
- Public insurance doesn’t cover for abortions
And that was just the state of things in 2014. From 2014 up to 2017, the state passed 10 additional restrictions. While some of them were repealed by higher courts, it is a glaring example of the state’s systemic war against abortion. As a result of these increasingly ridiculous regulations, the number of abortion clinics in Texas more than halved from 46 in 2011 to 21 in 2017.
In case you’re wondering whether all those regulations actually make abortions safer for the patients, like the legislators claim they will, the answer is no. Requiring the physicians to be linked to a nearby hospital is wholly unnecessary, and disproportionately impacts those in rural areas. Ultrasounds are not medically necessary for first trimester abortions either, instead acting as 1) an additional cost for patients and 2) a way to personify the fetus in the womb. It’s not just Texas either; 23 states have extra laws that regulate abortion clinics beyond what is normally required for providing safe abortions. 27 states have ultrasound regulations. It’s not like abortion is some unregulated Wild West medicinal practice in the first place; the proportion of abortion procedures that result in complications for the patient is much smaller compared to those arising from wisdom tooth extraction and childbirth itself. Yet they just keep getting introduced. Since Roe’s court decision in 1973, over 1,300 restrictions have been codified into state laws all across the country, with almost half of them enacted as recently as in the last decade. All this does is artificially increase the difficulty of running abortion clinics, limit the amount of qualified clinicians, deter those who are pregnant from receiving abortions, and ultimately restrict access to abortion services.
What happens then, once the state has piled on enough restrictions to cripple their own abortion services? Once they run out of holes to patch in their carefully-crafted lawbooks? We see it as anti-abortionists spring into motion post-Trump. Emboldened by the appointment of Justice Brett Kavanaugh in 2018 and later Justice Amy Coney Barrett in 2020 (which saw the Supreme Court’s political composition shift significantly to the right), a handful of states passed unconstitutional bills which outright banned abortion based on how far along the pregnancy is, often much earlier than the 24-week “viability line” outlined by Casey. Most alarming (they’re all alarming, of course, but this takes the cake) was Alabama’s ban on virtually all abortions, regardless of gestational age, rape, or incest. None of these bills ever went into effect since they were all struck down after long legal battles in federal courts, but the lawmakers knew this would happen—in fact, it was their intention even. Rep. Terri Collins, a sponsor of the Alabama bill, told ABC news that “they wrote the bill with the hopes that it will be picked up by the Supreme Court and allow for the landmark federal ruling in Roe v. Wade, which allowed for legal abortions, to be overturned.” Instead of tiptoeing their way around the precedent set by Roe, these states have decided to mount a challenge to Roe itself, threatening the very fabric of the country’s constitution.
We know how this story ends; it ends the way it begins. We now live in the unfortunate reality where a group of unelected judges have taken away over half the country’s rights to their own bodies. And so, while the Supreme Court’s decision on Dobbs may have come as a surprise, it’s imperative to understand that the anti-abortion bloc has never deviated from their playbook.
“We knew this was coming and, nationally, didn’t have a plan,” Rep. Elissa Slotkin told POLITICO. “The other side for 50 years has had a legal strategy—where is our 50-year strategy?”
So what’s next? Well, some Republican leaders have already signaled that they plan to introduce a nationwide 15-week abortion ban if they retake Congress, and have reportedly been drawing up further strategies to restrict abortions. Sure, such motions will face the same problem as the Democrats’ attempt at introducing the exact opposite bill and are all but certain to stall out in the Senate, but they reflect the political (and possibly social) landscape surrounding abortion post-Roe. Without the protection of the sacred Constitution, our politicians seem increasingly hellbent on completely eroding away the nation’s reproductive rights. Indeed, that proposed-but-doomed 15-week abortion ban I mentioned earlier? They were planning for it to be 20 weeks, but made it stricter after being invigorated by the Supreme Court decision.
And will it stop at abortion? Justice Samuel Alito, who penned the majority opinion on Dobbs, tries to convince the reader so, stating “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Yet a lot of doubt has been cast. Justice Clarence Thomas clarifies in his concurrence that, from his own belief, the reason they did not touch the other “precedents” was because “no party has asked us to decide ‘whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,’” effectively stating that if someone were to bring, say, the issue of LGBTQ+ rights to the Court, its protection would not be guaranteed at all. In fact, Thomas goes one step further and namedrops Griswold v. Connecticut (right to contraceptive usage), Lawrence v. Texas (right to same-sex sexual intimacy), and Obergefell v. Hodges (right to same-sex marriage), writing that their decisions were “demonstrably erroneous” and that the Supreme Court “[has] a duty to ‘correct the error’ established in those precedents.”
Some legal experts believe that Alito is likely to back a motion for overturning at least another one of those precedents. He has long held a disdain for LGBTQ+ rights, being one of the dissenters on the original Obergefell decision, and in a recent written opinion regarding the refusal to hear Davis v. Ermold (joined by Thomas), he restated his belief that same-sex marriage somehow… threatens religious freedom? Look, I don’t get it either. Justice Neil Gorsuch is another that is likely to join them; he had previously joined Alito and Thomas in dissenting against Pavan v. Smith, which upheld same-sex marriage. Coney Barrett has previously said that she does not view marriage equality as a fundamental right. And Kavanaugh operates on the belief that only “traditional” rights that are not explicitly spelled out in the Constitution are protected by it, which excludes abortion and, you guessed it, same-sex marriage. It certainly doesn’t help that all 5 of these justices have proved that they are willing to overrule precedent in Dobbs. Who’s to say they won’t do it again? According to a CBS New/YouGov poll done on the day after the Dobbs ruling, more than half of the country believes that the Supreme Court will eventually “end or limit” same-sex marriage and contraceptives.
The Republicans have began to launch their offensive on LGBTQ+ rights too, in a way not too dissimilar from their anti-abortion strategy: in the first 3 months of this year alone, over 200 anti-LGBTQ bills have been filed in dozens of states nationwide; in comparison, the entirety of 2018 only saw 41 such bills introduced. Among these infringing bills are a litany of bans on gender-affirming care, as well as Florida’s infamous “Don’t Say Gay” bill, which prohibits kindergarten and elementary school teachers from discussing topics related to sexual orientation and gender identity in the classroom.
Birth control rights, while having come under significantly less fire than all the others mentioned thus far, is not safe either, especially as it is often falsely equated with abortion, with several members of Congress having gone on record intentionally misidentifying contraceptives as “abortifacients” (i.e. abortion-inducing drugs) in recent times. Just last year, Idaho lawmakers tacked on a provision prohibiting the distribution of emergency contraceptives by public schools or colleges onto a bill that banned the use of public funds for abortions. The right’s attempts at linking birth control and abortion may prove to be dangerous for the nation’s remaining reproductive rights now that Roe’s protection on abortion rights is gone.
With that all said, how long will it take until a bill that challenges the constitutionality of something like same-sex marriage, or bodily rights for that matter, gets blocked by a judge and makes its way towards the Supreme Court? That’s up to the intersection of America’s legislators and judicial systems to decide.