Roe at 50: The first year without Roe as settled law
Today marks the 50th anniversary of Roe v. Wade
Today is the 50th anniversary of the Roe v. Wade ruling by the Supreme Court that later got overturned fully by the Dobbs v. Jackson Women’s Health Organization ruling last year on June 24th (and leaked by Politico on May 2nd of last year) by the right-wing theocrats in black robes on the court. There are Bigger Than Roe marches today and all throughout the weekend across the nation.
On Friday, President Joe Biden (D) signed a proclamation on the 50th anniversary of the Roe decision by SCOTUS.
The aftermath of the Dobbs decision featured a flurry of laws banning or significantly restricting abortion access across several states such as Missouri, Texas, and Oklahoma to take effect or to be passed into law. It also harmed Republican performance in the 2022 elections, especially in areas where abortion bans were the rage.
Conversely, it lead to states such as Michigan, California, and Vermont to codify abortion access protections into law at the ballot box, and for Illinois to pass a law protecting abortion access and gender-affirming care obtained in the state from being prosecuted by those coming from out-of-state.
The anti-abortion extremists are not stopping at banning abortion access, as they seek to go after contraception, birth control. in vitro fertilization, and medication abortion as well.
Christine Fernando at USA Today:
Each year since 1973, abortion rights activists have gathered on Jan. 22 for Roe v. Wade Day to celebrate the Supreme Court decision that granted a constitutional right to abortion.
But now, 50 years after the decision, Roe v. Wade Day will be different: Sunday will also mark the first anniversary of Roe since the ruling was overturned.
As protesters once again gather nationwide in support of reproductive rights, abortion access advocates say that instead of celebration, there will likely be a mix of more painful emotions: anger, fear, uncertainty, mourning. Still, galvanized by a surge in organizing energy after last year’s ruling, they said the day marks a new year of possibility for reproductive rights and an opportunity to reimagine abortion access from the ground up in a post-Roe world.
“Reproductive freedom has always been bigger than Roe,” said Rachel O'Leary Carmona, executive director of the Women’s March, organizer of the nationwide march in support of abortion access, dubbed "Bigger Than Roe."
She added: “Now we need to dream bigger.”
For many, that vision involves efforts in state courts and legislatures, as well as grassroots aid like abortion funds.
When the Supreme Court ended the constitutional right to abortion enshrined by Roe v. Wade last June, there were near-immediate consequences for women, children, and families: A 10-year-old victim of rape was forced to cross state lines to receive an abortion. Women were denied care while having miscarriages due in part to confusion among health providers. Thirteen states enacted trigger laws, which banned nearly all abortions (though some faced legal challenges), while other states moved to severely restrict the procedure. In the following weeks, some women suffered from sepsis before receiving medically necessary abortions.
It will likely take years to understand the full scope of the consequences, though experts say it will mean more children born in states with high rates of maternal and infant death, and negative physical and mental health outcomes for mothers that will affect their children.
Other reverberations from the Court’s decision in Dobbs v. Jackson Women’s Health Organization will be harder to measure. Overnight, a generation of women born with the constitutionally protected right to an abortion saw it taken away. While earlier restrictions and legal challenges had meant that some women, particularly in the South, were living with a de facto ban before the fall of Roe, formally losing that right has had serious implications for people of reproductive age, plunging many women into uncertainty and forcing them to consider how a rapidly shifting political landscape could affect some of the biggest decisions of their lives.
To better understand how the fall of Roe – which was decided 50 years ago this week – is upending a generation’s family planning and reproductive decision making, Vox spoke with women across the country last fall. Many were wondering how they might prepare for worst-case scenarios they had never considered before. Those questions dogged women who were mothers, and those who weren’t, and were particularly fraught for women with medical conditions like endometriosis, which can cause complications during pregnancy. They also affected trans men who could get pregnant and cis men – some of whom decided to get vasectomies to prevent unwanted pregnancies.
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Exit-polls and interviews with voters after the 2022 midterm elections made clear that abortion was a major factor in voters’ decisions, and caused Republicans to underperform in key races, leading some analysts to argue that the Supreme Court’s decision overturning Roe cost Republicans a major midterm victory. Kelly Clancy, a 42-year-old academic editor and mother of three, noted that voting wasn’t the only way people acted on their convictions.
The warnings I wrote about this topic a year ago on Medium have come true and then some:
Due to the reality that Roe is set to be either severely neutered or overturned outright, Blue states such as New York, New Mexico, and Illinois have passed laws protecting abortion access, while Red states like Georgia and Texas have passed laws further limiting or banning abortion access.
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Should SCOTUS rule in favor of Mississippi in Dobbs, then abortion access will be in jeopardy in several Red states, as they seek to ban all abortions and potentially criminalize those who seek abortions, mirroring pre-2018 Ireland in many ways. Conversely, several Blue states would seek to further strengthen reproductive freedom and abortion access. This sets up a scenario where abortion access will vary from state to state, county to county, and even zip code to zip code.
With a 6–3 conservative majority on the Supreme Court, pro-choice advocates should hope for the best and prepare for the worst as far as the case verdict goes, as the likelihood that Roe v. Wade is either chiseled to essentially nothing or overturned outright. Should the court rule in favor of overturning or eroding Roe, the anti-abortion forces will be celebrating this verdict like they just won the Super Bowl, as decades of anti-abortion organizing will have paid off. Conversely, on the pro-choice side, such a ruling will be the biggest setback the pro-abortion rights movement will see, and a pro-choice backlash over Dobbs will brew, effecting the 2022 midterms and the 2024 Presidential election.
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Where will the endgame go for anti-abortion activists should they get their way on SCOTUS this year? Will it seek to go after birth control, contraception, or in vitro fertilization next? Will it go even further towards “fetal personhood”? Will it also seek to go after other hard-won rights, such as LGBTQ+ equality as well? That’s a very scary scenario that needs high alert.
Planned Parenthood CEO Alexis McGill Johnson writes in Teen Vogue that Roe was the floor for reproductive health:
This is what the loss of Roe means: Over a third of women in the U.S. — and more trans men and nonbinary people — no longer have access to abortion. Without that federal protection, more states will introduce anti-abortion legislation in 2023. The truth is, Roe was necessary, but it was never grounded in equality. It never actually guaranteed that people could get an abortion. Hurdles like distance, money, time off of work, and other restrictions have stood in the way of people’s health for over 50 years. The heartache of losing Roe is one that many people have been feeling for a generation.
But I’m letting go of Roe, because I’m betting on better for generations to come. Young people know that movements are never settled. Despite a decades-long fight for reproductive freedom, you are growing up with fewer reproductive rights and voting rights than your grandparents and parents. We’ve seen this cycle before: When people have their rights stripped away, they get sad, they get mad, and then they get back out there and fight.
As our reproductive justice partners would say, Roe was the floor, we need to get to the ceiling. We must continue to fight until access to safe and legal abortion is a reality for everyone, no exceptions. We must fight for accessible reproductive health care and for sex education that is free of stigma and shame. What’s more, we have to make sure our rights don’t ebb and flow with every election cycle. Without the framework of Roe, we can advocate for the ceiling as we write ourselves back into the Constitution.
Jessica Mason Pieklo at Rewire News Group:
If the rule of law meant anything at all to the conservatives on the Supreme Court, we’d be commemorating the 50th anniversary of Roe v. Wade this month. But, we’re not. And I can’t think of a clearer snapshot, a more perfect metaphor, to capture the Roberts Court and its conservative benefactors’ obsession with consolidating power more than the death of Roe.
2023 is the first year where abortion is not legal nationwide since 1973. It is the first year where residents of Missouri have, as a matter of law, fewer recognized rights than their neighbors in Illinois. These are uncharted waters. Yes, Roe always represented a promise unfulfilled for far too many people, but a promise erased? That lands entirely differently.
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In Dobbs, Justice Samuel Alito let abortion rights advocates and supporters know that conservatives were just getting started in their project of rolling back our rights. We should take them at their word. In the months following Dobbs we’ve seen collective attacks in the states on contraception, gender affirming care, and LGBTQ familial rights—all rights conservatives on the Roberts Court called into question in Dobbs. Conservative Attorneys General have set their sights on prosecuting providers—and patients—while Republicans in Congress spent their first days in office of the new year passing—you guessed it—a hyperbolic anti-abortion bill.
This is our first year without Roe. We could soon face a “first year” without Obergefell v. Hodges and the guarantee of marriage equality. There’s the possibility of a first year without Griswold v. Connecticut and Eisenstadt v. Baird and the right to contraception, too. That’s the Dobbs legacy.
Kathleen B. Casey for Ms. Magazine explains that abortion has deep roots in America, even prior to Roe:
Indeed, the long history of abortion is so well-documented that even a cursory study reveals that this history is anything but brief. Humans have been trying to control if, how and when they give birth for literally thousands of years, and Americans are no exception. Even if we only begin our search for the history of abortion after the American Revolution, we readily find evidence that disputes Alito’s claim.
Despite the widely held assumption that women in the 18th and 19th centuries had no options when it came to controlling their fertility, in fact, they regularly turned to kitchen gardens, pharmacies, midwives and home medicinal guides in their efforts to control their pregnancies. Books on household medicine warned women that vigorous exercise such as horseback riding, jumping rope or dancing could harm a pregnancy, while ingesting certain herbs and minerals could “restore menstruation” and expel “internal parasites.”
Until criminalization, early abortions were legal under common law. Early abortions were generally defined as those occurring before quickening, the point at which a pregnant person could feel a fetus move, approximately three to four months, but sometimes longer. Neither a physician nor a midwife could make this determination; only the pregnant person could say at which point quickening occurred.
Abortion only became a crime through an uneven state-by-state process—and not all states criminalized abortions until 1880, approximately a century after our nation’s founding. Historians who study abortion have examined the motivations and methods behind the criminalization of abortion in the late 19th century, arguing that these efforts reveal an attempt to enforce white supremacist ideologies and gender and sexual norms, especially upon working class single women who were more vulnerable to state surveillance. In criminalizing abortion, men sought to reinforce white middle-class women’s obligation to marry and bear children within the heterosexual institution of marriage.
Thus, if we begin with the drafting of the Constitution in 1787, abortion was not a crime for nearly 60 percent of American history. If we include the colonial period when American culture and legal traditions were already developing, it’s much longer. In fact, if there is an aberration in the history of abortion in America, it is those nine decades of criminalization between 1880 and 1973.
Ellen Ioanes at Vox on how Dobbs is only the beginning for the anti-abortion movement’s goal to ban all abortions:
Friday’s March for Life, the most prominent national anti-abortion event, is the first since last June’s landmark Supreme Court decision to overturn Roe v. Wade, bringing into focus how much further activists want to go now that they’ve achieved the goal of overturning the national right to abortion. But despite a push for a nationwide abortion ban and other restrictions, current legal and political realities don’t support that vision.
National polling about abortion rights indicates that most Americans — 61 percent, according to Pew Research Center data from June — support abortion access to some degree. Voters in California, Vermont, Kansas, Michigan, and Kentucky all chose to protect abortion rights in their states after the Supreme Court dismantled the federal right to an abortion in the Dobbs v. Jackson case this summer. The Food and Drug Administration has expanded access to the medication abortion mifepristone, enabling certain pharmacies to dispense that medication with a prescription. Though some states have enacted, or attempted to enact, draconian anti-abortion measures, legal challenges have sometimes stayed those decisions or invalidated them entirely.
Yet politicians continue to push federal anti-abortion measures such as Sen. Lindsey Graham’s (R-SC) September proposal for a national ban after 15 weeks of pregnancy. States legislatures, too are trying to enact restrictive laws like Georgia’s six-week ban and Texas’s near-total ban on abortion, creating an environment in which, as legal historian Mary Ziegler told NPR’s Fresh Air on Tuesday, “what was once a constitutional right not very long ago is now a crime in large swathes of the country.”
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Anti-abortion activists got what they wanted — for now
Decades of anti-abortion activism — the 50th anniversary of the March for Life is almost exactly 50 years to the day after Roe was decided — culminated in the US Supreme Court’s decision in Dobbs. The energy, funding, and influence of the movement had been oriented toward this exact goal; a network of well-organized and powerful right-wing groups including the Susan B. Anthony Foundation and the National Council for Women, two anti-abortion advocacy organizations, had consistently poured money and resources into the fight since the 1980s, and now their efforts finally paid off.
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The Dobbs decision punts laws around abortion access down to the state level, where many legislatures — like Georgia’s, for example — already had laws on the books severely limiting abortion access. With Roe and Casey gone, those laws could ostensibly go into effect, but they are far from settled. In Indiana, for example, a highly restrictive abortion ban implemented shortly after Dobbs was decided is wending its way through the state’s courts. That legislation has been stayed since September, as a lower court judge determined that the ban likely violated the state constitution’s right to privacy.
My newly-elected Congresswoman Nikki Budzinski (D) said this best:
June 24th, 2022 will be remembered as a day of infamy, a day of mourning, and a day of tragedy until Dobbs is overturned. In the meantime, we need to fight stronger than ever to protect and expand abortion access and reproductive freedom to all walks of life. And, yes, despite the naysayers says otherwise, abortion IS healthcare.