In yet another attack on reproductive rights, the U.S. Supreme Court is expected to overturn the landmark Roe v. Wade case, which legalized abortion in America. A draft of the Court’s decision was leaked and published on Politico, sending waves throughout the country and leaving reproductive rights advocates scurrying for a solution. The draft opinion, written by Justice Samuel Alito, claims that abortion is not a constitutional right and that each individual state should have control over abortion access (or lack thereof).
Although the leaked decision is just a draft, it’s a foreboding glimpse at what’s to come once the Court releases the official decision later this summer. In the meantime, abortion is still legal and accessible in varying contexts—but that might not be the case for long. Abortion access has always been controversial, raising questions of morality, science, bodily autonomy, and religion. Now that we’re faced with the real possibility of no federal abortion protection, all of those questions are glaring back at us in what seems like the ultimate showdown. Part of winning a battle is equipping yourself with knowledge, so let’s unpack the Court’s opinion and the importance of abortion access for everyone—not just women and child-bearing people.
What the leaked opinion actually says
The Supreme Court’s 98-page draft opinion is a doozy in more ways than one. It’s written for a current case before the Court, Dobbs v. Jackson Women’s Health, concerning a law in Mississipi that bans abortions after 15-weeks’ gestation. Lower courts ruled that the law was unconstitutional under Roe v. Wade, so the appeal to the Supreme Court calls for the complete overturn of Roe so that the Mississippi law can be legally enacted.
The general premise of the draft opinion is that the U.S. Constitution makes no mention of abortions, meaning it’s not a right that should be federally protected. The opinion claims that Roe should never have been decided the way that it was, and that Dobbs will essentially correct the Court’s previous mistake of making abortions a federal right. Justice Alito makes multiple references to state abortion laws before Roe was decided in 1973, attempting to show that Roe went against the desires of state legislatures at the time and imposed a right that states didn’t really support. He repeatedly mentions “liberty” and makes analyses limiting a legal concept called stare decisis, the idea that courts should make decisions based on legal precedent. Basically, he says just because the past Court decided Roe before doesn’t mean that the current Court has to stick to it now.
Sparing you the details of the “precedent” debate, I’ll say that this argument is weak and sets a dangerous precedent for how courts can rule on other rights we currently enjoy. There are only a few rights that the Constitution directly protects, and the Ninth Amendment was added to the Bill of Rights to explain that enumerated rights are not the only ones we’re entitled to. Unenumerated rights (those not directly mentioned) should be protected, too. Unfortunately, the majority of the current justices don’t seem to agree.
A quick history of abortion access in America
Seeing that people have been having sex since the beginning of time, abortions have been happening for just as long. The earliest known abortion methods involved women consuming herbs, engaging in strenuous labor, or applying a lot of pressure to the womb to induce pregnancy termination. Surgical procedures became more popular as technology and healthcare advanced.
Since colonial times, legal abortions have yo-yo’d between being accepted and accessible to being criticized and limited. In 1860, 20 states (out of 33 at the time) had laws restricting abortions, and by 1967, abortions were punishable felonies in 49 states. Second-wave feminism in the 1960s and 1970s brought many women’s issues to the forefront, including contraception and abortion rights. In the 1965 Supreme Court case, Griswold v. Connecticut, the Supreme Court held that access to contraception is a privacy right, setting the stage for abortion access to also be considered a privacy right under Roe v. Wade eight years later.
After Roe was decided, legal abortion access drastically changed the landscape of reproductive health in America. Abortions may not have been legal before Roe, but again, they were still being performed “illegally.” However, the Centers for Disease Control and Prevention (CDC) reported a drop from 130,000 to 17,000 illegal abortions immediately after Roe. Illegal abortions came with considerable health risks, even death, and Roe decreased those numbers by nearly 90 percent. Since Roe was decided nearly 50 years ago, abortion rates have steadily declined, largely falling in line with declining pregnancy rates overall.
What America looks like without abortion access
If Roe is indeed overturned, state governments will have the final say in whether or not abortions are legal in their state. And, for states that maintain legal access, they will also have the final say in what stage of pregnancy an abortion can occur. This means that abortions may be legal in some states and illegal in others. Those seeking an abortion in a state that’s hostile to abortions, which is about half of them, might have to travel to the closest state where abortion is legal for the procedure. Having to jump through hoops to access abortions isn’t truly having access, and for the 40 million people living in “hostile” abortion states, the Court’s decision will present multiple blows.
Health complications and high maternal death rates
Women and child-bearing people have abortions for any number of reasons, and they are all valid. Deciding to carry and deliver a child is highly personal, life-changing, and quite frankly, extremely risky. Particularly for Black women and Women of Color who face serious pregnancy-related health complications and death at much higher rates, ending a pregnancy could literally be preservation of one’s own life. The CDC reported the maternal mortality rate for white women in 2020 at 19.1, compared to 55.3 for Black women. Additionally, the maternal mortality rate steadily increases for all races each year. Imagine what the numbers will be if abortions are illegal again in the U.S.
Intrusions on other sacred rights
While states’ rights are important, federal limitation is concerning since many of our rights aren’t specifically listed in the Constitution (those unenumerated rights, again). For example, the right to vote isn’t in the Constitution. The 15th Amendment established that voting can’t be restricted on the basis of race, the 19th Amendment established that voting can’t be restricted on the basis of sex or gender, and the 26th Amendment established that only people over the age of 18 can vote. But there is no constitutional amendment directly saying that voting is a federal right. This is why people who are convicted of felonies lose their ability to vote. Voting rights, like reproductive rights, are already under fire in America, and the Dobbs decision creates a continued uphill battle, not only for voting rights but for all rights that aren’t mentioned by name in the Constitution.
Deviations from what Americans truly want
Despite inflammatory takes by right-wing politicians and supporters, most Americans support abortion access and oppose the overturn of Roe v. Wade. Sadly, even when the numbers are clear, majority doesn’t always rule. We saw this happen during the 2016 election when Hillary Clinton won the popular vote but still lost the presidency. Now, we’re seeing it again with five people making decisions about a health and privacy procedure that impacts one in four women. Democracy should be just that: democracy; not a ruling of the masses by the few. As Americans, our consciousness and awareness varies, but if the majority of people are on the same page about something, our collective agreement should be enough.
Expectation for men to step up regarding reproductive rights and childcare
There are some amazing dads out there, but it’s an undeniable fact that most childcare needs fall on moms. Restricting abortion access essentially leads to forced births, which leads to an even greater burden on women to provide for children. It takes at least two to make a baby, and men shouldn’t be off the hook just because they’re not the carriers and deliverers. In a country where men in power tend to make health decisions impacting women, it’s time for those with Y chromosomes to step up and advocate for access to contraception, maternal health, childcare support, equitable women’s pay, and parental leave—all issues that impact moms’ abilities to mom. If we’ll be forced to live without Roe, then there has to be more paternal balance.
How we keep abortion legal for good
Debating whether abortion access is determined by the federal government or state governments is a distraction and points to the larger issue of governments dictating highly personal health decisions in general. Asking whether or not abortions should be legal is like asking whether or not healthcare should be legal. Yet and still, here we are.
While the possibility of losing federal abortion access is scary, all is not lost… yet. The Senate is slated to undergo a forced vote of the Women’s Health Protection Act, which would legalize abortion in the U.S. through official legislation, not just a Supreme Court case. The bill passed the House of Representatives last September, but it’s been stalled in the Senate since then. A previous version of the bill was struck down, so the current version is an update that addresses some of the provisional concerns expressed by Senate Republicans.
In true partisan fashion, votes on the current version of the bill are expected to fall along party lines. Democrats have Senate majority, but there are two Democratic senators who have consistently voted against abortion legislation, resulting in a 48-50 vote against abortion legislation. If the Senate vote on the bill were an even 50-50 split, Vice President Harris would technically get to make the deciding vote and push the legislation through. But if the vote stays at 48-50, she won’t have voting power. With that in mind, it’s unlikely that the next Senate vote will yield any immediate positive results. Passing an abortion law that both sides are in agreement with might be one of our government’s greatest struggles.
That said, we will eventually reach a common ground because there is support on both sides, even if minimally from those who are right-leaning. We’re facing a situation where the numbers aren’t in favor of federal abortion protection right now, but the margin is so narrow that all it takes is three people to vote in support. The larger implication of this split is that Democratic voters have to have a major turn out during the midterm elections this fall so that Democrats maintain the Senate majority. Without the Senate majority, the possibility of federal abortion protection disappears. Senators may decide the legislation, but we decide the Senators. Federal abortion protection is possible if we do our part at the polls.
It may take a while, and there may be a period of time where abortion access is severely limited because of the overturn of Roe, but our rights will be restored. Our bodily choices will be ours again. The majority will rule. This may be a lost battle, but we will win the war.