Abortion Is at the Supreme Court Again. It’s Different This Time

When Texas Governor Greg Abbott signed a new abortion restriction into law on May 19, it marked a chilling milestone—a staggering 1,300 restrictions enacted by states since Roe v. Wade was decided in 1973.

I know because I have read and logged all of them—many as they were being enacted—in my 22 years at the Guttmacher Institute tracking state legislation on abortion and other issues related to sexual and reproductive health and rights. It’s an astounding number, and while many of these restrictions were blocked in court, most of them are in effect today.

But the news from Texas wasn’t the only bad news for abortion rights that week. Just two days earlier, on May 17, the U.S. Supreme Court announced that it will hear oral arguments on a Mississippi law—currently blocked from going into effect—that would ban abortion after 15 weeks of pregnancy. The news alarmed legal experts and supporters of abortion rights alike, and with good reason.

A central tenet of Roe and subsequent Supreme Court decisions has been that states cannot ban abortion before viability, generally pegged at about 24 to 26 weeks of pregnancy. By taking a case that so clearly violates almost 50 years of established precedent, the court signaled its willingness to upend long-established constitutional protections for access to abortion. As the legal experts at the Center for Reproductive Rights put it, “The court cannot uphold this law in Mississippi without overturning Roe’s core holding.”

The Supreme Court that former President Donald Trump shaped—possibly for decades to come—by appointing conservative ideologues handpicked by the anti-abortion movement is poised not just to chip away at abortion rights, but to deliver a potentially severe blow.

RECORD-SETTING PACE

The decision to hear the Mississippi case comes as abortion rights and access are already under sustained assault nationwide, with states on pace to enact a record number of abortion restrictions this year. As of June 7, 83 restrictions had been enacted across 16 states. That count includes 10 measures that would ban abortion at different points during pregnancy, often as early as six weeks—before most people even know they are pregnant. That is the highest number of restrictions and bans ever at this point in the year.

Conservative state policymakers clearly feel emboldened by the 6-3 majority of anti-abortion justices on the Supreme Court and a federal judiciary transformed by then-President Trump’s more than 200 appointments.

FOR MANY, ABORTION IS ALREADY A RIGHT IN NAME ONLY

It is critical to understand that even before the Supreme Court hears this new case, affordable and accessible abortion care is only a right on paper for many people. Currently, 58 percent of women of reproductive age live in states that are hostile to abortion rights, facing multiple restrictions—from bans on insurance coverage to days-long waiting periods to intentionally onerous regulations that close down clinics—that build on each other to make abortion unobtainable for many.

The impact of restrictive policies is even further magnified in regions of the country where hostile states are clustered together, like the South, the Great Plains and the Midwest. In those regions, traveling to a state with better access may not be an option for many people because of the long travel distances and logistical or financial hurdles involved.

These barriers to abortion care are the biggest obstacle for people who are already struggling to get by or who are marginalized from timely, affordable, high-quality health care—such as people with low incomes, people of color, young people, LGBTQ individuals and people in many rural communities. Any further rollback of abortion rights would once again affect these populations disproportionately, as those with more resources and privilege would continue to find ways to get the care they need.

A POST-ROE UNITED STATES?

If the Supreme Court were at all concerned about adhering to precedent and preserving its own legitimacy, it would have declined to hear the Mississippi case. Instead, the court accepted it and may use this case to completely overturn Roe v. Wade. If so, things would get ugly, and fast.

Eleven states have so-called trigger bans on the books (or nearly so)—meaning they would automatically ban abortion should Roe fall. Also, 15 states (including nine of the states with trigger bans) have enacted early gestational age bans in the past decade. None of these early abortion bans are in effect, but with Roe overturned, many or all of them could quickly be enforced. Even if abortion rights are weakened by the Supreme Court rather than overturned, these same states will look to adopt restrictions that build on the decision and continue to push the legal envelope.

How all of this will play out is hard to predict. But there are lots of ways to fight back. States supportive of abortion, primarily in the West and the Northeast, must step up to protect and expand abortion rights and access—both for the sake of their own residents and for others who might need to travel from other states to seek services. Congress and the Biden administration must do their part by supporting legislation like the Women’s Health Protection Act that would essentially repeal many state-level restrictions and gestational bans, and the EACH Act that would repeal the harmful Hyde Amendment and allow abortion coverage under Medicaid.

There are also tireless advocates and volunteers, including abortion funds in many states, that already assist abortion patients in paying for and accessing care. No doubt these vital efforts will increase dramatically if more states move to ban all or most abortions.

As federal protections for abortion are being challenged, people may go other routes to get an abortion. Medication abortion—whether under the management of a clinician in person or via telehealth, or self-managed—is a safe and effective method, and many people have been able to get abortion pills through the mail during the COVID-19 pandemic. But here too, barriers loom large. More state legislatures are looking to join the 19 that already ban abortion via telehealth. And just this year, states started to enact bans on sending abortion pills through the mail.

Abortion is health care, plain and simple. There were more than 860,000 abortions in the U.S. in 2017, and at current rates, almost one in four women will have an abortion by age 45. Supporters of abortion rights have to hope for the best and prepare for the worst—and, most of all, must stay in this fight until every last person who needs an abortion is able to get safe, affordable and timely care.



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