The End of Roe: June 24th, 2022
On Friday, June 24th, 2022, the Supreme Court overturned Roe v Wade, which, for almost 50 years, guaranteed the constitutional right to abortion. This article provides an overview of Roe, the Dobbs v Jackson decision, and the potential consequences of restricting access to abortion.
The history of Roe v Wade:
Roe v Wade was a case argued on behalf of a woman named Norma McCorvey under the pseudonym Jane Roe. In the early 1970s, there was no federal ruling on abortion rights; it was up to the states to regulate the procedure. McCorvey was just one of many women who challenged state laws that banned the procedure. She was approached by two female lawyers who wanted to bring her case against a Texas law all the way to the Supreme Court.
The Supreme Court heard the case in 1971 and again in 1972. Meanwhile, McCorvey did not get an abortion; she carried her pregnancy to term and gave birth. Her case’s resolution was too late to help her, but her lawyers hoped it would lead to change for women across the country. On January 22, 1973, in a 7-2 majority, the Court ruled that the Constitution guarantees the right to an abortion. Ultimately, the decision prohibited states from banning abortion before fetal viability, which was around 28 weeks in 1973 but is now accepted to be 23 weeks due to improvements in medical care.
Conservative Justice Harry Andrew Blackmun wrote the majority opinion. His justification was that abortion is a decision that should be left to a woman and her doctor. He explained that both entities have a right to privacy that derives from the 14th Amendment ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.") The decision in Roe was backed by six other justices, a mix of liberals and conservatives.
Since Roe v Wade, abortion has divided the country. While the decision incited much political debate, studies indicate that as many as ⅔ of Americans support the legalization of abortion. Public support for abortion has increased over the past decade, but the partisan divide has widened. Republicans in several states have repeatedly challenged Roe by enacting abortion restrictions, hoping the Court would eventually dismantle Roe altogether. Although the Court repeatedly upheld Roe, several landmark cases chipped away at its strength. In Planned Parenthood v Casey (1992), the Court affirmed the heart of the Roe decision; that states could not ban abortion before viability. However, the Court essentially gave the states more leeway to restrict abortion, as long as they did not cause an “undue burden.” Since then, conservative state governments continued to push against Roe, waiting for the moment that the Court became poised to overrule the decision.
As politicized as it is today, it is hard to imagine that abortion was not always a partisan issue; in 1973, Democrats and Republicans were not divided on the subject as they are today. However, the Republican Party used its increasingly anti-abortion stance as a political tactic to win over a significant voting bloc: the Evangelical Christians. This created the divide that has been perpetuated and strengthened over the years.
In the 2010s, abortion came under increasing threat; Republicans gained control in the state legislatures, and abortion was a critical issue in their platforms. They created laws that attacked abortion rights and access from all sides; they instituted gestational restrictions, waiting periods, parental consent requirements, mandatory counseling, and forced ultrasounds. Of the 1,300 abortion restrictions enacted since Roe, 46% occurred since 2011. Some of these restrictions were declared unconstitutional, while many others were upheld.
One such case was Dobbs v. Jackson Women's Health Organization. This case centered around a 2018 Mississippi law that banned most abortions after 15 weeks. The Supreme Court heard Dobbs v. Jackson in December 2021 and was expected to make a decision by June. This case ignited concern that it would be the one to lead to Roe's downfall. The Court had become increasingly conservative, with three new justices recently appointed by Republican President Donald Trump. In a historic leak, a draft opinion became public on May 2, 2022, and signaled that the Court was about to eliminate the constitutional right to abortion.
Justice Alito’s Majority Opinion
As June progressed, public anxiety increased as the end of the Court's term approached. The decision was released on June 24th, 2022, and their worst fears came true. In the final opinion, Justice Samuel Alito says the Court must overrule Roe because the Constitution does not mention abortion, nor is it implicit in the text. While the Due Process Clause of the 14th Amendment has been used to guarantee rights not explicitly stated in the Constitution, Alito argues that such rights must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." Abortion, he says, does not fit these criteria, and thus Roe is overturned by a 6-3 majority. Alito writes, "Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences'' it is time to return the decision on abortion to the states.
It is important to differentiate that the Supreme Court’s decision does not make abortion illegal; rather, it leaves it up to the states. However, as many as half of the states are moving to ban abortion or severely restrict it.
What is happening now?
This map depicts how abortion access is changing. After Roe’s fall, there were three routes states could take to restrict abortion: enforcing a law from before 1973 that was still on the books but made moot by Roe, allowing trigger bans from after 1973 to go into effect, or introducing new legislation. Millions of Americans of reproductive age are currently without abortion access or will likely have their access eliminated in the coming weeks. While some state courts have blocked pre-Roe bans, the future of abortion access in the US is uncertain.
Response of the Medical Community
Dozens of medical associations released statements condemning the Dobbs v Jackson decision. This article contains a summary of many of them: https://www.click2houston.com/features/2022/06/24/medical-organizations-react-to-supreme-court-decision-to-overturn-roe-v-wade/
The American Medical Association (AMA) president Jack Resneck Jr., MD, released a statement on behalf of the organization. He writes, “this is an egregious allowance of government intrusion into the medical examination room, a direct attack on the practice of medicine and the patient-physician relationship, and a brazen violation of patients’ rights to evidence-based reproductive health services.” Dr. Resneck acknowledges that this decision will have devastating consequences for patients and disproportionately impact “Black, Latinx, Indigenous, low-income, rural and other historically disadvantaged communities that already face numerous structural and systemic barriers to accessing health care.” The AMA asserts that it will oppose abortion restrictions and fight to expand legal protections for abortion.
https://www.ama-assn.org/about/leadership/dobbs-ruling-assault-women-s-health-safe-medical-practice
The American College of Obstetricians and Gynecologists
Iffath A. Hoskins, MD, FACOG, president of the American College of Obstetricians and Gynecologists (ACOG), also condemns the Court’s decision to overrule Roe and calls this a dark and dangerous time for the nation. The organization asserts that “abortion is a safe, essential part of comprehensive health care, and just like any other safe and effective medical intervention, it must be available equitably to people, no matter their race, socioeconomic status or where they reside. When abortion is legal, it is safe. Allowing states to set individual restrictive abortion policies, including restrictions and outright bans on this essential component of medical care, results in increased inequities that already plague the health care system and this country.” They “will continue to support our members, our community partners and all people in the ongoing struggle against laws and regulations that violate and interfere with the patient-physician relationship and block access to essential, evidence-based health care.”
https://www.acog.org/news/news-releases/2022/06/acog-statement-on-the-decision-in-dobbs-v-jackson
Far-Reaching Consequences
Consequences for Women’s Health
An overwhelming amount of evidence supports abortion as a fundamental aspect of healthcare. Historical data and numerous recent studies demonstrate the consequences of denying a person the right to choose abortion. New bans or restrictions on abortion will cause unnecessary suffering for millions of people; they will exacerbate maternal morbidity and mortality in the US, which is the highest of high-income nations.
Even when abortion was legal, women still suffered under restrictions. The Turnaway Study, a long-term investigation of the consequences of either having or being denied an abortion, illuminated many truths about what abortion does for a woman. Women who are denied abortions because they are over the gestational limit fare worse than their counterparts who had abortions in many ways. These women are more likely to remain in poverty, have worse mental health, have poor relationships with their children, and stay with abusive partners. Clearly, denying a woman an abortion can have severe consequences in her life. New abortion restrictions will lead to an increasing number of forced births and will subject more women to the risks of pregnancy and childbirth in a nation known for its dangerous level of maternal mortality. The Turnaway Study also demonstrated that children of women who were denied an abortion are more likely to suffer various issues, including developmental or school delays and poorer bonding with their mothers. This research shows the tremendous harm that can result from denying a person a wanted abortion.
Today, abortion is a very safe and common procedure, but it will become dangerous once again if people are deprived of their right to end their pregnancy. The future may reflect the devastation that occurred in the past before Roe. In the 1950s and 1960s, as states increasingly criminalized abortion, thousands of women died from complications due to illegal abortions. Women consented to unsanitary conditions, unsafe procedures, and untrained providers when they had no other options. Hospitals opened entire wards dedicated to treating abortion complications. Furthermore, many women refused to seek obstetrical care until it was too late, fearing the consequences of being exposed for having an abortion. Some doctors even refused to treat women experiencing abortion complications or even miscarriages to exonerate themselves from being implicated as an abortion provider. Other physicians were imprisoned, attacked, or assassinated for their involvement in abortion. If abortion is criminalized again, these dark moments of the past may become our new reality.
Abortion access is likely to become increasingly difficult even in states protecting the right to terminate a pregnancy. Following the S.B. 8 abortion law in Texas, many patients traveled to surrounding states where abortion was legal to have their procedure performed. A large trend of women traveling out of state for abortions will overwhelm the systems in abortion-friendly states, making it even more difficult for women to find a provider. A potential avenue for providing abortion access to women in states where it is criminalized is expanding medication abortions. Over the past 15 years, medication abortions have become increasingly popular and now encompass more than half of all U.S. abortions. This regimen combines mifepristone and misoprostol and is a safe, effective way to end a pregnancy. However, only women under ten weeks gestation can use this type of abortion. Many pharmacies do not fill these prescriptions, but patients may be able to obtain these pills by traveling out of state or ordering them online. While entities such as the FDA are trying to make abortion pills more accessible, states may take action to prohibit these pills.
All in all, the criminalization of abortion has the most significant effect on those historically and presently marginalized in healthcare. The consequences of the Dobbs v Jackson decision will be felt most by people of color, those living in poverty, and other medically disenfranchised communities. People who have the means to travel and pay for an abortion will still be able to do so, but many people will not be so fortunate. Abortion restrictions will undoubtedly widen existing disparities in health outcomes, particularly maternal mortality.
Other consequences
In his concurring opinion on Dobbs v Jackson, Justice Clarence Thomas argued that the rationale used to overturn Roe v Wade should be used to revisit other landmark cases based on this logic. The cases that Justice Thomas referenced include the following: Griswold v. Connecticut, 1965 (right to contraception); Lawrence v. Texas, 2003 (consensual same-sex relations); and Obergefell v. Hodges, 2015 (right of gay couples to marry). He asserted that the Court has an obligation to reconsider these decisions because they were as faulty as Roe was. He said that after "overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions" protect the rights established in these cases.
Now that Roe was overturned and Justice Thomas threatens other fundamental liberties, further action from the Supreme Court could lead to further degradation of bodily autonomy. All reproductive healthcare is threatened; birth control, emergency contraception, gender-affirming care, and in vitro fertilization. Additionally, LGBTQ+ individuals worry that the Court will revisit the decisions that affirm the Constitutional protections of their rights. It is undoubtedly a time of great uncertainty in America for people seeking an abortion, but what else could be next?
References:
https://www.pewresearch.org/religion/fact-sheet/public-opinion-on-abortion/
https://www.nytimes.com/2022/06/24/us/clarence-thomas-roe-griswold-lawrence-obergefell.html
https://abcnews.go.com/US/wireStory/minority-women-affected-abortion-banned-limited-82599673
https://www.npr.org/2022/05/11/1097666334/roe-birth-control
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