In the morning of June 24, 2022, the Supreme Court overturned Roe v. Wade, effectively retracting federal protection over the right to abortion. The case between the Mississippi Health Department and the Jackson Women’s Health Organization. The case upheld that the Mississippi 15 week abortion ban was constitutional gutting Roe, and starting a chain reaction of abortion bans across the U.S.
Back in early May, Samuel Alito, the Chief Justice of the Supreme Court, wrote a majority opinion draft that was leaked to the press and published by Politico. The document showed the Supreme Court’s intent to rule in favor of Dobbs, going against precedent and overturning Roe v. Wade, a landmark case decided in 1973, which upheld the constitutional right to abortion in the U.S. when it was reaffirmed in 1992 in the case Planned Parenthood v. Casey.
Alito’s opinion states, “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the 14th Amendment”, this section of the ruling foreshadows many of the fears of what the future may hold.
While the constitution may not hold any specific provision regarding abortion, at the time when the U.S. Constitution was written, there were no laws regarding abortion. Many historians of the era agree that abortion was “not prosecuted or condemned up to the point of quickening—the point in which a pregnant woman could feel the fetus’ first kicks and movements.” Until the mid-19th century, what we consider early induced abortion today wasn’t even called an abortion then.
Women who did not want to be pregnant had several options available to them, including herbal concoctions that could be self-administered to “cause menstruation.” Pregnant women could consult a midwife or head to a local drugstore; however, the decision to end a pregnancy was mostly a private one.
Lack of contraception, the cultural stigma against having a child outside of marriage, and the dangers of childbirth at the time meant it was not uncommon to choose to terminate one’s own pregnancy. Some estimate that 20-35% of all pregnancies were terminated in what we now would consider early induced abortions.
The constitution does not have any reference to abortion because there was no need to reference abortion at that time. The language and narratives that exist around abortion today were non-existent at the founding of the country. And even still, it does not mean that abortion should not be protected by the law.
Most anti-abortion laws came about in the 1860s when a coalition of white male doctors with the support of the Catholic Church and other groups began to push legislators to enact abortion bans. Abortion was nationally banned in 1910. However, underground abortion services continued due to lack of regulation, and many women risked complications or died from botched abortions. When abortion was legalized in the 1970s following Roe v. Wade, there was still the issue of access. Despite this, the ability to receive an abortion from a trained doctor or medical provider hugely lowered the risks.
Even with Alito’s originalist interpretation, there are plenty of court rulings that protect many things not specified in the constitution. These are called “unenumerated rights” and include the right to travel, privacy, dignity, and autonomy, which are not stated directly in the constitution but decided upon to be implied in its message.
Outside of the constitutional debate, the ruling has a deep and far-reaching impact on the country as a whole. The case not only immediately endangers the lives and livelihoods of thousands of women and birth givers across the U.S., but also sets a dangerous legal precedent for future Supreme Court Rulings.
Justice Clarence Thomas stated in a concurring opinion that the court “should reconsider” previous decisions and it’s the court’s duty to “correct the error” in regards to Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges – three cases that defend rights to contraception, LGBTQ+ sex, and same-sex marriage respectively. In the first two cases, protections were given under the 14th amendment and a citizen’s “right to privacy” which was also the original justification for Roe.
Roe v. Wade is not at all unpopular. A Pew research poll states that between 1995 and today, 61% of people believe in the right to abortion in almost all circumstances. Only a mere 37% believe that it should be the opposite. However, we do not see this opinion reflected in this country's leadership, which is supposedly built to represent the people. The following afternoon after the decision was released, protesters filled the steps of the Supreme Court. Several more protests started to appear in many other major U.S. Cities.
With Roe now gone, 13 states have enacted “trigger laws,” which were set to ban abortion the moment Roe v. Wade was overturned. Several other states have plans to enact laws that will either severely restrict or outright ban abortion. Several states also plan to enact laws that will criminalize abortion providers and those that assist in helping people get abortions.
In states such as Texas, which has such trigger laws, all abortion procedures have immediately ceased and face legal uncertainty. The same has followed in other states such as Oklahoma and Utah, even though it may take a few days before the law takes full enforcement. Missouri was one of the first states to enact its trigger law, with its attorney general publicly announcing the banning of abortion in the state.
The stark reality that we are facing is millions of women and birth givers will now have to contend with the reality of leaving their state to gain access to abortion. Some may face criminal charges for doing so. Abortion providers in many states now can face legal action and also be criminalized for assisting or providing abortions. Some states don’t even protect the right to abortion in cases of rape or incest – which touches on deeper issues of human rights.
There is no middle ground when it comes to the topic of abortion. Outlawing abortion does not end abortion. Instead, it increases the number of unsafe abortions, which increases the number of deaths from unsafe abortions and incomplete miscarriages. Criminalizing abortion providers and enacting laws like SB8 in Texas puts a bounty on doctors and healthcare providers.
Meanwhile, other states have sprung into action to defend the right to abortion. California, Oregon and Washington have pledged to protect against judicial and local law enforcement cooperations with out-of-state investigations and refuse non-fugitive extradition of individuals for criminal prosecution related to accessing legal reproductive healthcare. In Colorado, which is surrounded by states that plan to either restrict or ban abortion, Democratic state representative Yadira Caraveo stated that Colorado would be a “big island” of abortion access for the middle of the country. In Massachusetts, Republican Governor Charlie Baker reaffirmed his stance on abortion by signing an executive order that would protect providers who perform abortion services for those out of state and protect those that seek reproductive services in the state of Massachusetts.
So what now? We face this grim and stark reality in an already divided nation. Now further divided, not only on ideological lines, but now along the lines of whether abortion access is protected, or criminalized. There is a lot that is unknown. Several other states do not have laws that protect abortion, and while legal now, it can easily change depending on who’s in power.
Meanwhile, we must do what we can. Call representatives to push for codifying the right to abortion into law, donating to abortion funds which help to provide wrap-around care for abortions such as out-of-state travel and lodging, transportation, and more. For those living in abortion-hostile states, purchasing emergency contraception or abortion pills can be an option. Donate to abortion providers such as Planned Parenthood, or even volunteering to help out if you are able. Research and support pro-choice politicians and leaders, and take to the streets to protest. The Supreme Court decision leaves a lot of questions that will only be answered with time, but we must do what we can to affirm that the right to an abortion is a constitutional right, and we must continue the fight to expand access and codify it into law.
Editor: Chelsea D., Lillian H., Amshu V.