It's been exactly one year to the day since the Supreme Court ruled in favor of abortion rights. That should be an auspicious occasion, one we might otherwise mark with some private moment of satisfaction, even celebration. Instead, we're seeing the swan song on those same rights finally sung. Our bodies, our choices? Not for long.
If you think that’s an overstatement, you haven't been paying attention. One year after the Whole Woman’s Health case, we’re back in this familiar place, gearing up for another legal battle against another draconian state law — and once again in Texas, no less! The law this time, which takes effect September 1, stands to make abortion illegal as early as 14 weeks by outlawing the procedure commonly used at that time, and requires fetal remains to be buried or cremated. It’s even more extremely anti-choice than any other recent attack on abortion access, of which there have been many.
So-called “pro-lifers” have been energized to the max since Trump assumed the presidency in January. Around Valentine’s Day, an Oklahoma legislator introduced a bill that requires women get a man’s approval to have an abortion (you may recall; he romantically said you are but a “host”). In April, Trump halted funding of global organizations that so much as speak the word abortion as part of their health services. Then, despite the fact that Trump peppered buzz words like “women’s health” throughout his first address to Congress, he proposed a budget that would block Planned Parenthood from receiving any federal funding — even the kind of grants that pay for Zika education, HIV testing, cancer screenings, and more. The un-subtle aim is to leave those centers no choice but to shut down, stranding women across the country without care.
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Daydreams of impeachment won’t land us on safer shores, either; Vice President Mike Pence, a guy who signed a law requiring funeral-like treatment of fetal remains, is next in line, and the anti-choice agenda is his priority. He became the highest ranking official ever to attend the annual March for Life this January — and he didn’t just attend, he bumped Kellyanne Conway to be the event’s keynote speaker.
The pro-life side is winning the abortion war. And it’s not just because Republicans took over Congress and the White House this year. It’s because they’ve spent the past 44 years working toward this victory, chipping away at Roe v. Wade since the moment the Supreme Court handed down that decision in 1973. Every step of the way, pro-choice fighters have been there to hold the line on behalf of the majority of Americans who want safe, legal abortion. (Yep, years of polling still report that most Americans believe abortion should be legal in some form.) Providers have continued their work, even in the face of threats to their lives, and lawyers have seen decades of unconstitutional laws struck down. Following the 2016 election, Planned Parenthood alone had more than a million new activists sign up as “defenders,” pledging to show up to protests and do whatever it takes to never go back to a pre-Roe world.
And yet, we still find ourselves in this moment, when all that enthusiasm might be too little, too late. How did we get here? Picture a line of dominoes once carefully stacked, reliably ticking down, one by one.
1. Roe V. Wade Was Never A True Win For Women
Before Roe v. Wade was decided on January 21, 1973, abortion was criminalized in 44 states; nearly every state had to re-work its laws after the decision. Roe made the termination of an unwanted pregnancy during the first trimester legal nationwide. (Regulation of second- and third-trimester abortions was and still is left to the states.) Feminists hailed the decision a major victory, yet Roe v. Wade was never a “feminist” law — not really. In fact, the very ruling that made abortion legal in the U.S. is exactly what has made these rights so precarious.
To understand how that could possibly be, just look at what Roe actually says: that people have a right to privacy under the Constitution’s 1st, 4th, 9th, and 14th amendments, and abortion is ultimately an issue of that privacy. That’s a foggy way to guarantee a woman’s right to make choices about her body, and so it doesn’t really do that. Also: None of those amendments actually mentions the word “privacy.”
“If you sit down and read Roe v. Wade, it’s surprising that there’s really almost no feminist language in the opinion,” says Linda Greenhouse, a former Supreme Court correspondent for The New York Times and co-author of Before Roe V. Wade. “It’s not written from the point of view of women. The idea was really to enable doctors to act in what they regarded as the best interest of their patients, without risking being prosecuted or going to jail.”
In short, Roe was a decision deeply rooted in the times. In the 20,000 word decision, there is no mention of women's rights, period, though there are several mentions of the doctor's rights to attend to his patient however he sees fit. This is important because Supreme Court rulings are not law in the same way a law that's passed by Congress is; they're simply interpretations of the Constitution, made by the people who happen to be sitting on the bench at the time.
This is why Roe was weak from the start. First, because it became law via the Supreme Court's interpretation; and second because that interpretation was based on an implied right of privacy, not something that is expressly written in the Constitution. Even Ruth Bader Ginsburg, progressive darling of the bench, has called Roe "bad law," arguing that it would have been stronger had the right to an abortion been based on the 14th amendment’s equal protection clause. In short, Roe was always a little flimsy, and some — like Ginsburg — have argued that a more gradual change in state legislatures and the courts would’ve been a safer way to secure our rights; one with less backlash against them. Because the backlash has been fierce.
2. The “Pro-Life” Movement Takes Over the Republican Party
Six months after Roe was handed down there were 188 bills introduced across the country seeking to restrict abortions — each one was overturned by the courts. At that point, social conservatives existed in both parties and they were growing frustrated with the speed and ferocity of social change for women.
It wasn’t just Roe. It was Roe in addition to the aptly named Equal Rights Amendment, which seemed close to ratification, promising to finally write gender equality into the Constitution. Until those two developments, many Evangelicals and other Christians were actually open to (if not outright supportive of) de-criminalizing abortion, since they wanted to prevent babies being born out of wedlock. Pastors and priests were often the first phone call when a family had to solve the “tragedy” of an unmarried girl falling pregnant.
As roles outside of the home became more available to women (thanks, feminists), even more traditional social norms began to crumble (women could even apply for their own credit cards without a husband’s permission — imagine). Opponents started to see exactly how much power abortion and birth control afforded women. And they bemoaned the loss of strict Judeo-Christian values, and longed for the return of the traditional two-parent family, with children born after marriage, and mothers who tended to their needs and pretty much nothing else.
Meanwhile, the Republican party smelled opportunity. “The Republicans were never against abortion,” Greenhouse says. “But the Republican party decided [opposing abortion] would be a great way to re-align the party and make a play for Catholic voters.”
Ah, the Catholics. Until Roe was handed down, the Catholic Church was the single biggest opponent to abortion rights in the country — it was the Catholic Church that lobbied for pro-life legislation on the state level, and it was the Catholics who founded the pro-life organization Americans United for Life. But Catholics had also historically been Democrats (it was the party of Kennedy, after all).
It took almost a decade for Republicans to woo these religiously pro-life voters. By the time Ronald Reagan was running for president, they had cobbled together economically conservative Republicans with socially conservative Democrats. This formed the family values coalition, which completely reshaped American politics, solidifying the pro-life movement’s place.
In 1980 Reagan would win the presidency, largely due to his support of what Time Magazine called in 1981 “the most powerful single-issue force in American politics” — the burgeoning “right to life” movement. He was the first presidential candidate to put abortion on his campaign platform, and he promised to appoint Supreme Court justices who’d take down Roe if elected (sound familiar?). A socially conservative Republican party was born.
3. Regulate! Regulate! Regulate!
The aforementioned Catholic-driven Americans United for Life organization ominously calls itself the “the legal architect of the pro-life movement.” Originally founded in 1971, it spent the first half of that decade raising funds and forming a legal strategy with a tight focus on state legislatures and the courts, rather than changing federal law. According to AUL’s website, that strategy “served to bolster pro-life policies, legal precedents, public attitudes, and coalitions that pro-life leaders can build upon in order to enact broader pro-life laws and prepare for the day when Roe’s eventual reversal returns abortion jurisdiction to the states.”
In practical terms, that meant an organization would write the regulations, and Republicans in state legislatures would pass ‘em. The result would be to make abortion as onerous to get as possible. It was smart. Rather than solely relying on a moral argument (You know, “Abortion is murder!”), this introduced laws that ostensibly focused on protecting women’s wellbeing. They even had hard-to-argue-with names like “Women’s Health Defense Act” and “Women’s Health Protection Act.” This is how rules like 24-hour (and then 48- and 72-hour) waiting periods and mandated counseling (often including bogus claims) came to pass.
Of course, the AUL isn't alone; it's joined by several conservative organizations on the fight against abortion rights, including Alliance Defending Freedom, Susan B. Anthony List, and Eagle Forum among many across the country. Like we said: end times.
With its dogged attack on women’s rights framed as caring for women, the anti-choice movement was able fly under the radar of average moderate voters — voters who believed (and still do) that abortion should be legal, if only regulated in a way that keeps it safe. In a sad, ironic twist, this was the whole point of Roe in the first place.
The pro-choice movement took a lot of these rules to state and federal courts, with a number of cases snaking all the way to the Supreme Court. Sometimes the opposing side won (with a strong legal assist from the AUL), as it did in 1989 with Webster v. Reproductive Health Services, upholding a Missouri law prohibiting any state-funded programs or employees (including doctors and social workers) from counseling women in a way that might lead to an abortion. (The Webster ruling also narrowed Roe’s viability parameters.)
Most of the time, the pro-choice side did the winning — as it did in 1992 with Planned Parenthood v. Casey, which determined that a law could not put an “undue burden” on a woman seeking abortion care, in a 5 to 4 decision, which is also, by the way, how closely Webster was decided, and is how these rulings usually come down. (Casey was upheld again last year in Whole Woman’s Health v. Hellerstedt — the anniversary of which we’re marking today — finding the regulations on abortion clinics constituted an undue burden, but more on that later.)
But if the pro-choice side was successful, it was only because of the way the court was stacked: Five justices against four happened to support preserving access — meaning we are almost always just one justice away from the end of abortion rights as we know them. And either way, none of this stopped conservatives from regulating the hell out of Roe, anyway.
4. 2010: The beginning Of The End
You’ve heard of the Tea Party, right? In 2010, riding the wave of disgust over the passage of Obamacare, a new, more extreme group of Republicans took over Congress. More importantly, as far as abortion is concerned, they took over state capitals. According to polling research firm Rasmussen, Republicans won control of 25 state legislatures in 2010, up from 14 the year before, while Democrats were left with 16. Republicans added six governors to their ranks, as well.
But it gets worse than a Republican sweep: By and large, these were not traditional Republicans who might, say, see rape, incest, or a threat to the life of the mother as reasonable exceptions to their anti-abortion agenda. No, these were radicals. “Prior to 2010, we had more moderate conservatives in power at the state level nationwide. These issues just didn’t come up on the state-level in the same way as we’ve seen since then,” says Elizabeth Nash, the senior state issues manager for the Guttmacher Institute, a nonprofit that researches abortion laws and access. “There was a sea change that year, and it hasn’t shifted back yet.”
The result: A whopping 338 abortion restrictions have been passed over the past six years, according to the Guttmacher Institute. This means that a full 30% of abortion restrictions enacted in the four-plus decades since Roe have all come about in just a handful of years. The laws, which again were often written by the AUL and other players in the anti-choice lobby, also got more severe: They have covered everything from defunding Planned Parenthood to putting regulations on abortion clinics that were so formidable (and unnecessary) they forced many to shut down. This included things like requiring doctors who perform abortions to have admitting privileges at hospitals, and requiring clinics to meet the standards of surgical centers that do far more complex procedures.
The geographic area in which anti-choice politicians held sway also ballooned. “From 1985 to 2010 there were 189 abortion laws passed. But in total, this was happening in about 13 states,” explains Willie Parker, MD, board chair of Physicians for Reproductive Health. “Now it has grown to about 27 states.” This means that although abortion remains legal, for a growing number of women across the country, it’s become impossible to get.
In June 2016, the Supreme Court overturned the Texas law that required doctors get admitting privileges, that clinics meet the standards of surgical centers, that banned abortion at 20 weeks, and that required women who wanted to take the abortion pill to do so supervised by a physician. That was Whole Woman’s Health v. Hellerstedt, and it was decided with one fewer justice than usual. While this was a win for the forces of choice, it was too late: More than half of Texas’ 41 abortion clinics had already closed.
5. Donald Trump Wins, & Republicans Sweep
And this brings us to the 2016 election, which brought Donald Trump into the White House with Mike Pence his vice. Both chambers of Congress are now controlled by Republicans, clamoring to defund Planned Parenthood, and wipe out women's healthcare along with it.
It’s hard to envision abortion rights surviving this administration. In January, Pence became the highest ranking federal official ever to attend the March for Life, the annual march on Washington that started as a protest on the ruling’s very first anniversary, 1974. “Life is winning!” he declared before a roaring crowd. Kellyanne Conway, the event’s keynote speaker, offered this gem: “This is a new day, a new dawn for life.” Indeed.
All of this has given the anti-choice movement a renewed sense of fervor, and the pro-choice side is left on the defensive. Blue states have moved to shore up their abortion rights laws: In New York, Governor Cuomo introduced an amendment to the state’s constitution affirming Roe; in Delaware, the Governor just signed a bill that would ensure abortion would remain legal even if Roe is overturned; and in February, Rhode Island doubled down on its protections of abortion access.
After conservative justice Neil Gorsuch was appointed to the bench (replacing the late Antonin Scalia), the Supreme Court is one person away from a heavy conservative majority — one that could overturn Roe. And with cases continuously working their way through the courts, the new bench will have ample opportunity to do so.
6. Next up: Could SCOTUS turn to the dark side?
As we said: Cases involving abortion are often the closest calls, decided by a one-judge difference between yes or no. While the current court is split the same way it was when it decided in favor of access a year ago, that could change soon.
We don’t mean to be crass, but three of the five justices who’ve historically protected abortion access share an average age of 80: Ruth Bader Ginsburg is 84; Anthony Kennedy is 80; and Stephen Breyer is 78. To put that into perspective: Since 2005, four justices have left the bench, either by dying or retiring, at the average age of 81.5. Just one needs to go before 2020 — that’s it.
Rumors of Kennedy’s retirement aside, the odds simply are not in the pro-choice side’s favor. (By the way, Kennedy’s no liberal; he’s moderate at best, and worryingly inconsistent. That he’s now considered a potential savior does not bode well for keeping abortion rights intact.)
Given all of this, it is not hard to imagine a scenario in which President Trump gets to appoint a second justice to the Supreme Court, pressing a heavy thumb down on the scales of the judicial branch. It’s hard to imagine a scenario in which he doesn’t. And if he stays true to his promise to appoint “pro-life” justices, then what?
7. Overturning Roe — & Then Doing Much, Much More
Trump’s presumed second pick — to say nothing of the possibility that he gets a third or even fourth — means we would have a staunchly conservative majority on the bench, mirroring the one in Congress, in the White House, and in a majority of state legislatures and governorships.
That means that when another case about another limit to abortion is presented to the high court, we can assume they’d be motivated to hear it. Legal experts are split on whether the precedent would hold. Some are optimistic: “Roe stands for a bedrock principle that women have a right to choose abortion, and that right has been modified somewhat over time, but Whole Woman’s Health was ultimately an affirmation of the core right,” says David Brown, a senior staff attorney at the Center for Reproductive Rights who worked directly on that case. “No Supreme Court has ever reversed itself in the space of a couple, three years. Because of this tremendous victory, I am a little bit more sanguine about the years to come.”
Others, not so much: “If we had five conservative justices on the court, all it would take is for them to decide they want to take this case and use it to overturn Roe,” says David S. Cohen, Abortion Care Network Board Member and a constitutional law professor at Drexel’s Thomas R. Kline School of Law. “There’s nothing stopping them. Justices overturn precedent all the time. The fact that it’s been around 44 years doesn’t change the fact that if you’ve got five motivated justices, they’re going to overturn.”
It’s impossible to predict, but the bottom line is that worrying that the decision could be overturned is not a huge leap in hypothetical thinking at all — it’s exactly what Trump is promising when he says he’ll appoint justices to undo Roe. (Which he has already done once.)
If that happens, it’s not as if abortion will automatically be banned. The issue would be sent back to the states — and most state legislatures, it is pretty clear, want to ban abortion. That leaves two possible scenarios, both of which lead to the effective end of abortion in America.
The first scenario: President Trump seems to believe in a states’ rights approach to banning abortion. The Center For Reproductive Rights estimates that women in 33 states are at risk of losing abortion rights without Roe. In fact, there are 15 states with old abortion bans on the books ready to come back into effect as soon as Roe is lifted. While a few states may continue to offer legal abortion (New York Governor Cuomo has proposed writing abortion rights into the New York Constitution), it will become cost prohibitive for many people to travel to and pay for the procedure — and where would they even go?
Other than leaving the country, they would have to head to places like New York, California, or Washington, which have historically been more friendly to these rights than other states. But could just a handful of states actually handle the entire population of women needing care? After Texas’ severe regulation bill passed (and before it was struck down last summer), wait times at the clinics that remained open increased to as long as 21 days just to get an appointment, says Daniel Grossman, MD, an Ob/Gyn and director of the Advancing New Standards in Reproductive Health (ANSIRH) research group at the University of California, San Francisco. That’s a three-week wait. Now, just imagine having to travel from out of state only to end up on a wait list that could be so long you miss your window.
Then there’s the matter of paying for the procedure itself. The government already does not pay for abortion under public insurance programs, like Medicaid, except in the cases of life endangerment or rape — the Hyde Amendment established that when it was passed in 1976. Private insurance pretty much doesn’t cover it, either: Currently, 10 different states restrict abortion coverage in insurance plans. In 25 states, plans sold on Obamacare exchanges are restricted in terms of abortion coverage; public employee plans in 21 states are barred from covering abortion. And in the latest iteration of the GOP’s healthcare bill, private insurance plans would lose out on tax breaks if they offered abortion coverage — making the plans that do offer it more expensive and harder to find. The point is, women already pay out of pocket for these procedures for the most part, which can cost up to $3,000.
Then, if abortion is illegal in your state, you have to add the cost of traveling to that, which could encompass gas for your car or a bus ticket, or airfare plus lodging if you have to go far. “As the distance to the nearest facility increases, at some point that distance just becomes too far, especially for a low-income woman,” Dr. Grossman, of UCSF, says. “She will then be forced to carry an unwanted pregnancy to term.”
All of this is to say: Once Roe is gone, and without any new legislation being written, abortion would become an exclusive benefit of the 1%.
The second scenario: Let’s say the Supreme Court Justice writing the opinion overturning Roe decides to take the decision to the next level and extend the Constitution’s protections for all people to a fertilized egg or fetus. Suddenly, we’ve got “personhood” on the books.
Thinking of an unborn fetus as a person has always been the goal of the “pro-life” movement. To them, a fetus’ right to potential life trumps anyone’s right to make private choices.
The problem is, you absolutely cannot give a fetus rights without taking rights away from the woman carrying it. Personhood would put abortion on par with murder, and it would unquestionably outlaw ending a pregnancy at any time, in every case, even if the fetus had a beating heart but was essentially braindead. It could also mean that women who do terminate pregnancies, perhaps even those who miscarry, could be convicted of crimes against “children” — manslaughter or murder — and be imprisoned.
If you think this sounds extreme, just remember that Donald Trump said while campaigning that women who seek abortions deserve “some form of punishment.” (He reversed this statement after intense backlash, to say women are “victims” of abortion, and doctors should be punished. Not much better.) We are living in a political climate in which a “personhood bill,” like the one Georgia Rep. Jody Hice introduced to Congress in January, doesn’t have much in its way. And, depending on the wording, this kind of draconian legislation could even make certain kinds of birth control illegal — like IUDs, because they prevent implantation of a fertilized egg (which, remember, by someone’s definition is a person deserving of civil rights). Plenty of such bills have come and gone over the years, usually facing a tough crowd in Congress. But the sad truth is the pro-Roe majority has been asleep at the wheel. We’ve strayed way off course in the abortion wars, and it won’t be easy for our trajectory to be righted.
We’ll leave you with this: There are only six countries in the entire world where abortion is illegal. Five of them are developing nations. The other is Vatican City. By now, you should have a pretty clear picture of how the United States becomes the seventh. That simply cannot be. It’s time to let your legislators know you expect their dogged attention to this issue, and commitment to keeping our bodies free from state control. Slam those dominoes back up on the table and take a seat; make it known you’re not playing around. Because the other side certainly isn’t.
Special thanks to Wendy Davis, former Texas State Senator and founder of Deeds Not Words; Zoe Levine, staff attorney in U.S. Legal Program at Center for Reproductive Rights; Kaylie Hanson Long, NARAL national communications director; Jeanne Mancini, president, March for Life; Destiny Lopez, executive director of All* Above All; Anise Simon, National Network of Abortion Funds coordinator; Jennifer Dalven, director of the Reproductive Freedom Project at the American Civil Liberties Union; Amy Hagstrom-Miller, founder of Whole Woman’s Health; Kristi Hamrick from Americans United for Life, and finally, Marian Faux, author of Roe v. Wade, for lending their time and expertise to the reporting of this piece.
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