How We Got Here: A History of Abortion Regulation in the US
On Friday, June 24th, 2022, the Supreme Court made a landmark decision in the case of Dobbs v. Jackson’s Women’s Health Organization that strips federal protection of women’s right to have an abortion. This decision has been met by outrage and protest by many across the country, but has also been celebrated as a victory by others. In order to fully understand the deep-rooted effects of this decision and the multifaceted response, we must first look at this case and the precedent it has overruled.
What is the Roe v. Wade case? What rights did it protect?
Roe v. Wade was a case that was introduced on behalf of Norma McCorvey (under the pseudonym “Jane Roe”) against the local district attorney in Texas, Henry Wade, in 1969. At the time, the laws surrounding abortion in Texas prevented Norma from having an abortion, as they were considered criminal, with one exception: “an abortion procured or attempted by medical advice for the purpose of saving the life of the mother” [1]. However, Norma did not qualify for this exception. The US District Court for The Northern District of Texas ruled in Norma’s favor and declared that the criminal abortion laws in Texas were unconstitutional. The District Court specifically stated that the “‘fundamental right of single women and married persons to choose whether they have children is protected by the Ninth Amendment, through the Fourteenth Amendment, and with the Texas criminal abortion statutes were void on their face because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiff’s Ninth Amendment rights.” [1]
This case was then appealed and brought before the Supreme Court. On January 22nd, 1973, the Supreme Court ruled 7-2, stating that the Due Process Clause of the Fourteenth Amendment of the US Constitution provides a “fundamental right to privacy” which protects a pregnant woman’s freedom to choose to have an abortion. They introduced a trimester timetable to regulate abortion policies. Essentially, within the first trimester, governments would be unable to impose any regulations on abortion other than that they should occur under the supervision of a licensed physician. In the second trimester, governments would be able to have more regulation over abortion, when they are acting with the goal of protecting the mother’s health and not in the interest of protecting the life of the fetus. They stated that viability occurs at 28 weeks (between the second and third trimester). After viability, states would be permitted to more strictly regulated or restricted abortions, unless it was medically necessary to protect the mother’s life [1].
What is Planned Parenthood v. Casey case?
The case of Planned Parenthood of Southeastern Pennsylvania v. Casey partially overruled Roe v. Wade. The key in Roe v. Wade was that it used the trimester schedule to regulate governmental intrusion in abortion. This was upended in the Planned Parenthood v. Casey ruling. The trimester framework was replaced by the viability analysis framework. This new framework was a result of medical advances which were able to show that a fetus would be viable (i.e. be able to survive outside of the mother’s womb) at 23 or 24 weeks, rather than at 28 weeks, as stated in Roe v. Wade. This case also introduced the undue burden standard, wherein restrictions on abortions would be considered unconstitutional if they impose an “undue burden” on a pregnant woman seeking an abortion prior to viability [2]. This allowed for a partial overruling of Roe v. Wade as states would now have the ability to impose stricter abortion regulations within the first trimester of pregnancy. But this ruling also reaffirmed (at the time) that states are banned from outlawing most abortions.
What is the Dobbs v. Jackson Women’s Health Organization case?
In March 2018, a case was filed by the Center of Reproductive Rights, on behalf of the Jackson Women’s Health Organization. This case was filed in response to the Mississippi State Legislature passing a bill banning abortion after 15 weeks of pregnancy, titled the Gestational Age Act. This ban directly went against the Roe v. Wade ruling, since 15 weeks is far earlier than when a fetus can be considered viable. The Jackson Women’s Health Organization is the only state-licensed abortion clinic in the state of Mississippi and this ban, if enforced, would have resulted in a significantly heightened level of restriction to access abortion care across the entire state.
The state of Mississippi submitted a petition for this law to be reviewed by the Supreme Court on June 15th, 2020. On May 17th, 2021, this appeal was approved by the Supreme Court. In the subsequent months, the oral arguments were held, and the ruling of the Supreme Court was issued on June 24th, 2022. The ruling essentially stated that “The Constitution does not confer a right to abortion; Roe and Casey are overruled, and the authority to regulate abortion is returned to the people and their elected representatives” [3].
This decision to overturn Roe v. Wade was supported by five of the current Supreme Court Justices: Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barret. The decision to keep Roe v. Wade was supported by four Supreme Court Justices- Sonia Sotomayor, Elena Kagan, Sepher Meyer, and John Roberts. In regards to the Mississippi Gestational Age Act, Justice John Roberts, along with the five justices that supported the overturning of Roe v Wade, voted to enforce this act.
This landmark decision stripped 49 years of federal protection for a woman’s right to have an abortion.
A CNN poll conducted by SSRS in May 2022, found that 66% of Americans did not want Roe v. Wade to be overturned and it also found that 59% of Americans would support legislation that allows for a nationwide right to abortion access [4]. Americans have been split over this decision. The people who support this overturning, were celebrating, as they felt that they now have a seat in the debate regarding the reproductive rights of women in America. The larger portion of Americans, who were horrified by this decision, have moved to form protests around the country to contest this Supreme Court decision.
Where is access to abortion restricted or banned?
With federal protection on abortions being removed, pre-existing and soon-to-be passed state laws will solely determine access to abortions. These differ by state. As of June 26th, 2022, as seen in the map below [6], there are several states that have already banned abortion or have trigger bans in place that will take effect in the coming weeks. Alabama, Texas, Oklahoma, Missouri, and South Dakota have total bans on abortion. Wyoming, North Dakota, Wisconsin, Indiana, Ohio, West Virginia, Kentucky, Tennessee, Mississippi, Louisiana, Florida, Georgia, and South Carolina still have legal abortion access but they already have or are expected to introduce more severe bans in the coming weeks. Up-to-date, detailed information about abortion restrictions by state can be found at: https://www.plannedparenthoodaction.org/abortion-access-tool/US [7].
Sourced from https://fortune.com/2022/06/24/abortion-laws-by-state/
What can you do to help?
There are several ways that you can help those who need it get access to abortion care. This includes:
Locating abortion clinics:
Mail-in abortion pill access:
Finding financial assistance for abortion access:
National Abortion Fund Hotline: 800-772-9100
Legal assistance for abortion:
Abortion access funds to donate to:
Local state abortion funds (a comprehensive list can be found here: https://abortionfunds.org/funds/)
Volunteer at your local abortion clinic
Final Thoughts
The overturning of Roe v. Wade will have reverberating consequences from increased maternal mortality rates to the removal of other well-established women’s rights in the upcoming years to the reversal of other rights such as contraceptive access etc. As a woman in America right now, I know that I feel angry, disappointed in the Supreme Court’s decision, and terrified about where this will take us in the future. I know that I feel helpless. But in the past few days, we have seen how the American public has come together to rally for abortion access. I hope that this article has given you the tools you need to educate yourself about where America stands on women’s rights and what you can do to create actionable change to support the women who are immediately affected by the lack of abortion access.
References
https://tile.loc.gov/storage-services/service/ll/usrep/usrep410/usrep410113/usrep410113.pdf
https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
Agiesta, J., & Edwards-Levy, A. (2022, May 6). CNN poll: The Supreme Court's draft opinion on Roe v. Wade hasn't shaken the midterm landscape. CNN. Retrieved June 26, 2022, from https://edition.cnn.com/2022/05/06/politics/cnn-poll-abortion-midterms-roe-v-wade/index.html
The case in depth. Center for Reproductive Rights. (2022, June 24). Retrieved June 26, 2022, from https://reproductiverights.org/case/scotus-mississippi-abortion-ban/dobbs-jackson-womens-health/
Lodewick, C., & Mui, C. (2022, June 25). These states have banned abortion. here's what abortion laws will likely be in every state. Fortune. Retrieved June 26, 2022, from https://fortune.com/2022/06/24/abortion-laws-by-state/
Parenthood, P. (n.d.). Where is abortion illegal?: Abortion limits by State. Planned Parenthood Action Fund. Retrieved June 26, 2022, from https://www.plannedparenthoodaction.org/abortion-access-tool/US
