It's Time to Codify Roe v. Wade
Grace Rapaski
It was nearly 50 years ago in 1973 when the U.S. Supreme Court ruled that access to safe medical abortions was a constitutional right in Roe v. Wade. However, the case for women’s reproductive autonomy was far from settled in that courtroom—there has been consistent and relentless backlash to the ruling by state legislators and other motivated interest groups across the country. A staggering 1,320 abortion restrictions have been enacted after Roe v. Wade took effect—573 in the last decade alone. In fact, 2021 has been an especially devastating year for a woman’s right to choose. Since January of this year, 19 states have collectively put into place more than 100 abortion restrictions, making 2021 the most restrictive year for abortion access on record (surpassing the previous record of 89 restrictions set in 2011). Instead of focusing on securing quality healthcare for all citizens in the midst of a pandemic having taken the lives of nearly half a million people, many state legislatures have turned their attention to stripping women of their reproductive autonomy—arguably a basic human right.
It is no coincidence that this surge of anti-abortion legislation has flooded state courts shortly after the apointment of Justice Amy Coney Barrett to the U.S. Supreme Court. One of President Trump’s final blows to our government was his persistent pushing of an ultra-conserative Supreme Court justice just weeks after the death of Ruth Bader Ginsburg. With Amy Coney Barrett in Ginsburg’s old seat, the Supreme Court currently has a six-three conservative lean, making it one of the most partisan dominated courts in decades. Amy Coney Barrett is most notorious for her pro-life agenda and has vocalized her distaste for legalized abortion access on many occasions. It seems that nomination and swift rise to power has mobilized millions of pro-lifers across the U.S. and prompted them to incite a new wave of legal backlash as the chance that Roe v. Wade will be overturned no longer seems unreasonable.
The confirmation of Justice Amy Coney Barrett to the Supreme Court energized anti-abortion activists across the U.S. Khadejeh Nikouyeh News and Record.
With a right-leaning Supreme Court, numerous conservative states have attempted to enact ultra-restrictive abortion legislation with hopes that in the wake of conflict the highest court in the land will safeguard their decisions. Most noteworthy for the deployment of such restrictive measures is Texas. On September 1st of this year, Texas placed a ban on abortions once fetal cardiac activity is detected, usually around six weeks of pregnancy - this is the only ban on abortion before 20 weeks to go into effect since 1973. This legislation is outrageously restrictive; women do not generally know they are pregnant for about three weeks and recent CDC data reveals that more than two-thirds of women get abortions after six weeks of pregnancy. Thus, Texas’s newest scheme is impeding on 60% of abortions. The egregious law also incentives private individuals to file lawsuits against anyone who helps a woman get an abortion after cardiac activity is detected. Those who successfully sue an abortion provider are awarded at least $10,000. While there have been a swarm of lawsuits from the Department of Justice and the Biden administration who recognize the backwardness of this law, the court of appeals decided to let the law remain in effect until they hear the oral arguments in opposition. This process is tedious, often lingering on for months, which will allow the clearly unconstitutional Texas law to remain in effect. The abortion ban effetively strips access to 85-90% of safe abortion clinics in Texas. While The U.S. Justice Department can seek an emergency appeal from the U.S. Supreme Court, the court previously chose to refrain on ruling on the law’s constitutionally after hearing pleas from abortion providers. It is especially concerning that the Supreme Court’s reluctance to intervene in this issue could set the precedent that states are free to enact blatantly unconstitutional laws without being checked.
On September 11, 2021, outraged women congregated at the Capitol to protest Texas' newest anti-abortion law. Michael Gonzalez/The Texas Tribune
While Texas has been most noteworthy, many other states have tightened their grip over reproductive rights, making this year unprecedented in human rights abuses. Since January, Arkansas has enacted the most restrictions to abortion access this year, followed by Oklahoma, Indiana, Montana and South Dakota. There have been six-week abortion bans in Idaho and Oklahoma, a 20-week ban in Montana, and a ban on abortion for non-lethal genetic anomalies in Arizona. Another disturbing trend is states’ continued focus on restricting medication abortion, with four new restrictions in Montana, three in Indiana and another restriction in Arizona. Arizona, Arkansas, Indiana, Kentucky and Oklahoma have all enstated restrictions on abortion clinics in 2021, an issue that has not been pertinent in state legislatures for nearly five years. On December 1st of 2021, the Supreme Court heard out Mississippi in their attempt to pass a ban on abortion after 15 weeks, which advocates have said is in direct opposition to Roe v. Wade. Listening to the oral arguments of this case, the Supreme Court seemed inclined to uphold the Mississippi law as none of the six conservative justices expressed support for the rule that states cannot bar abortions before fetal viability (around 22 to 24 weeks after pregnancy). With this conservative majority on the bench, there is much speculation that this case could be used to severely weaken or even overturn Roe v. Wade.
It is shameful that women’s reproductive autonomy is still such a contentious topic in our progressive society, especially in the midst of a pandemic. It seems as though state legislatures and other energized interest groups sense exploitability in the Supreme Court. There are clearly legal and constitutional loopholes in Roe v Wade, (which some say focuses more on a right to medical privacy that a woman’s right to choose) that allow for the perpetuation of pro-life agenda. Will we ever stop dealing with staunch backlash to a ruling from the 70s if states are consistently able to weasel around constitutional law and debilitate women’s basic rights? What does this indicate about what the future holds? Abortion will never be a neutral topic as it ties in political and religious value systems which are both inherently charged. There will always be people driven by their religious beliefs over all else; this is inevitable. But does this make utter violations of women’s rights also inevitable? Our court needs to stop being so influenced by their politics and act with more emphasis on restricting states from infringing on constitutional law. That is their role in government in the first place. The court must strike down Mississippi’s abortion regulation efforts or else we risk having our highest law in the land invalidating a woman’s basic right to choose. If the court allows Mississippi’s 15 week abortion ban to stand, states will certainly continue pushing the limits that bar woman’s basic rights. Along with December’s court hearing, it is critical for the Women's Health Protection Act to pass through both houses of congress and be signed into law to reaffirm and strengthen Roe v Wade.
The Women’s Health Protection Act recently passed through the house may be the brightest glimmer of hope for securing women’s reproductive freedom across the country. This piece of legislation, recently drafted by numerous progressive congressmen, seeks to ensure the reproductive autonomy of all women and bar states from infringing on certain liberties. The WHPA establishes a statutory right for health care professionals to provide abortion services without any restrictions imposed by individual states. It also would prohibit restrictions on abortion after fetal viability when in the good medical judgment of the health care provider. There is unanimous party support for the WPHA from house democrats and with Biden as president there is no better opportunity for the saving grace bill to become law.
In response to Texas and many other state's surge of anti-abortion laws, the house of representatives passed the Women's Health Protection Act. The bill, seeking to codify Roe v. Wade, now makes way to the senate. Kevin Lamarque/Reuters.
Only with time will we have a clear vision of the future of reproductive rights law. We must hope for the court to strike down the Mississippi abortion ban and for the Women’s Health Protection Act pass through both houses of congress. We must remember that those hurt most from abortion restrictions are those who already struggle to access healthcare—black, indigenous people of color, immigrants, members of the LGBTQI+ community, those with disabilities, those with low socio-economic status. State abortion restrictions are significantly widening existing inequalities. We must speak out against these blatant human rights violations. We cannot keep moving backwards.