The Supreme Court decision has created two Americas—one where abortion is still legal and the other where it is a crime. The battle now shifts to the polling booth—with the midterm elections in November. If Republicans gain control of Congress, American women may lose even more reproductive rights.
Editor’s note: We offered more background on abortion rights in the US—and the Roe v Wade ruling—in our previous Big Story.
Researched by: Sara Varghese, Sheya Kurian and Anagha Srinivasan
The vote: The Supreme Court erased the constitutional right to abortion—and overturned a 49-year old precedent set in the 1973 Roe v Wade ruling. One 6-3 decision upheld a Mississippi law banning abortions after 15 weeks of pregnancy. Another 5-4 ruling voted to overturn Roe—with Chief Justice Roberts voting against reversing the precedent. Otherwise, the split was along ideological lines—conservative vs liberal.
The effect: Each state now has the right to make its own laws around abortion rights—since they are no longer constitutionally protected.
The majority opinion: Writing the majority opinion, Justice Samuel Alito made it clear that Roe judgement was wrong to read abortion rights as part of the right to privacy: “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” And he pointed out that legal abortion lacks “deep roots” in American history:
“[T]he dissent does not identify any pre-Roe authority that supports such a right—no state or constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise.”
(Of course, this may have something to do with the fact that women didn’t have the power to make law until recently—and Roe has to be viewed in the context of the equal rights movement of the 70s.)
The minority opinion: penned by the liberal justices—was unusually blunt in accusing their colleagues of playing politics:
“[W]eakening stare decisis in a hotly contested case like this one calls into question the Court’s commitment to legal principle. It makes the Court appear not restrained but aggressive, not modest but grasping. In all those ways, today’s decision takes aim, we fear, at the rule of law.”
The global reaction: There was no comment from New Delhi, but a number of close US allies condemned the ruling. UK PM Johnson called it “a big step backwards”—while Canadian PM Justin Trudeau described it as “horrific.”
Abortion bans: There are 18 states that either have old laws—which have lain dormant due to the Roe ruling—or trigger laws—which kick in 30 days after Roe is overturned. These either ban abortion outright—or only allow it in very limited cases—such as if the person seeking an abortion could die or face “irreversible impairment of a major bodily function” if their pregnancy is not terminated. In some instances, even rape or incest are not permitted as legal exceptions.
Apart from these, a number of other red states will move quickly to introduce bans—or make existing laws even more restrictive. In all, 26 out of 50 American states are likely to severely restrict or ban abortions. In the map of 22 states below, the blue bits are early-term bans, while the tan and red are near-total bans:
Blue state response: The three big states in the West—California, Oregon and Washington—announced a “multi-state commitment” to provide a “safe haven” to abortion seekers from other states. This includes not cooperating with law enforcement targeting those who get or perform abortions:
“We will not sit on the sidelines and allow patients who seek reproductive care in our states or the doctors that provide that care to be intimidated with criminal prosecution. We refuse to go back and we will fight like hell to protect our rights and our values.”
Some states like California are also planning to enshrine abortion rights in the state constitution—making it harder for Republicans to pass anti-abortion laws if they return to power.
Point to note: Access is limited even in these states. For example, 40% of California counties don’t have a single clinic that provides abortions—which worries many: “As more and more people come in from out of state seeking abortions, it’s going to put more pressure on a system that’s already strained.”
Unequal access: The ruling transforms abortion from a right to a privilege—afforded to women in liberal states, and those who can afford to travel out of red states to get one. A landmark study compared women who received an abortion with women who were denied one—because they were just past the cutoff date:
“The study found that women denied the procedure were more likely to experience negative health impacts—including worse mental health—than women who received one. The former were also more likely to face worse financial outcomes, including poor credit, debt and bankruptcy.”
These effects are much more likely to be borne by people of colour and marginalised, low income women. Many live in red states likely to ban abortion. More than half of the nation’s Black population lives in the South—which also is home to a significant number of Hispanic women. The Plains states like Oklahoma also have a large Indigenous population. As one pro-choice advocate explains:
“This will be a giant and larger hurdle placed in front of them. Most people who seek abortion care already have children. And they may not have time off work, access to child care, the things they need to be able…to leave their community to get constitutionally protected health care.”
Most importantly this: A study conducted by the Guttmacher Institute and the WHO looked at the effect of abortion rights across countries. Bans don’t reduce the number of abortions—they just make them more unsafe:
“In countries where abortion is allowed on broad grounds 9 out of 10 abortions occur safely. But in countries where abortion laws are very restrictive and access to care is limited, only 1 in 4 abortions are safe.”
This is likely to accelerate the already rising number of pregnancy-related deaths in the US—which are the highest in the developed world. FYI: Black women are three times more likely to die in pregnancy or childbirth than white women. Point to note: Maternal mortality rates are already high in those states certain or likely to ban abortion—47% higher than the national rate.
Can employers help? Some of the biggest companies have announced plans to reimburse travel expenses for employees seeking out-of-state abortions. These include Starbucks, Airbnb, Netflix, Citigroup, and Microsoft. Google will also allow its workers to apply for relocation without having to offer a reason. But Tesla, Coca Cola and others have stayed quiet—while Meta offered a vague promise to help “to the extent permitted by law”—but says it is still assessing the “legal complexities.” But the most telling numbers are these:
“When asked by the consultancy Gartner in late May what new policies they might adopt if Roe was overturned, 60% of human-resources executives said they wouldn’t add anything. Fewer than 10% said they’d pay for some or all of employees’ travel costs to get to a reproductive-care facility, or provide paid time off for procedures.”
There are only a few avenues left on the table—and none of them are easy.
One: Rejig the Supreme Court. The long route involves waiting until the conservative justices retire to replace them with liberals—if the Democrats stay in power. But this is unlikely to happen anytime soon since most of the Republican appointees are young—with the exception of 74-year-old Clarence Thomas. The other option is to “pack” the Court—simply increase the number of justices on the bench to appoint more liberals by passing a bill in Congress.
But, but, but: Any such move will be blocked by Republicans in the Senate via a filibuster—which is when the opposition keeps talking and talking to block a bill from ever coming to a vote. The Democrats need 60 votes to override a filibuster. The Senate is divided 50-50—with Kamala Harris casting the decisive vote. Besides, even President Biden doesn’t support this plan of action.
Two: Making abortion rights the law of the land by passing a bill in Congress. The problem: once again, the filibuster. The only way to override the filibuster is to get more Democrats into the Senate. Complicating the matter: Two Democrats—Joe Manchin and Kyrsten Sinema—who are not reliable allies. Point to note: If the Democrats have the numbers, they could also get rid of the filibuster itself—but that sets up the prospect of future Republican majorities also pushing through their agenda without any restraint.
Midterm elections: In the end, nothing will change unless Democrats win significant majorities in both houses in November. Before the Roe ruling became a hot electoral issue, Republicans were poised to win back both the House and the Senate. But abortion may emerge as the wild card in a number of close races—especially since the Democratic base will be more energised. And it might get more independent voters out on Election Day:
“According to a CBS News survey in May, 40% of Democrats said they would be more likely to vote if Roe v Wade were overturned, compared to only 17% of Republicans. Seventy-one percent of Democrats were more likely to vote for a political candidate who wants to keep Roe, while only 49% of Republicans said they felt that way about candidates who want to overturn it. Among independent voters, 45% would be more likely to support pro-choice candidates compared to 23% who favoured anti-abortion ones.”
Data point to note: A Gallup poll early this month found that a majority of Americans—55%—now identify as “pro-choice” in the abortion rights debate, the highest level in 27 years. And a Wall Street Journal poll early this month found that more than two-thirds of Americans wanted to uphold Roe.
OTOH: Liberals are already quarrelling among themselves as to who is to blame for the state of affairs. And some are angry that Democrats are using the ruling to fundraise for the elections. Like this young lady below:
And many are criticising the “listeless” response to the ruling—which has included House speaker Nancy Pelosi reciting a poem and House Democrats singing ‘God Bless America’ on the stairs of the Capitol. As one critic put it: “Leave it to Democratic leadership to bring a sing-along to a gunfight where Republicans are using Bazookas and Jet fuel to torch our rights.”
Then there will be a lot more to worry about than Roe.
No abortions, period: For starters, the next fight will centre on abortion pills—since a number of states also ban medication-induced procedures. And some red states are also planning to ban interstate travel to get an abortion—or prosecute those who help women cross state borders. Former Vice President Mike Pence—who will likely run for the White House in 2024—is pushing for a national abortion ban. So blue states may be in jeopardy.
Other rights in jeopardy? In his Supreme Court opinion, Justice Clarence Thomas appeared to open the door to revisiting other cases—all of which were decided on the right to privacy. These included: Griswold v Connecticut, which found a statute criminalizing the use of contraceptives by married couples to be unconstitutional; Lawrence v Texas, which held that a Texas law criminalizing consensual same-sex intercourse was unconstitutional; and Obergefell v Hodges, which extended the right to marry to same-sex couples. His conservative colleagues don’t seem to agree—but we should expect judicial challenges to these rights, as well.
Goodbye, privacy: As The Cut notes, the abortion bans offer justification for all kinds of surveillance—which are no less worrying:
“What is clear is that legislation like this, and bills that seek to prohibit or limit mail-order abortion pill services, would require a high level of state surveillance if they’re going to work. If the provision of abortion becomes a crime, then digital data—internet searches, location information, visits to certain websites, records entered into period-tracking apps—becomes potential evidence.”
The bottomline: The lesson of this story: Women’s rights are never settled law—anywhere in the world.
New York Times has an annotated version of the ruling. NPR has more on the ethical dilemma facing doctors. Vox looks at the three ways liberals can restore abortion rights. Washington Post and The Cut have very good pieces on what the anti-abortion activists are planning next. TIME has a terrifying story on how fake anti-abortion centres are being used to trap women. GQ explains why the end of Roe is terrible for men—while Vox makes an economic case for abortion rights. Bloomberg News argues that the ruling is terrible for the Supreme Court. The Atlantic warns that if the Court overturns Roe—it can reverse pretty much anything.
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