Pro-choice demonstrators protest outside of the US Supreme Court in Washington, DC on November 1, 2021. (Photo by Yasin Ozturk / Anadolu Agency via Getty Images)
After a decade-long, coordinated attack on abortion rights, abortion opponents have never been closer to their ultimate dream: overturning Roe v. Wade, the 1973 Supreme Court decision that legalized the procedure nationwide. Without Roe, the ability to regulate abortion will return to the states and abortion rights would likely be protected in less than half of them.To understand how the United States got to this point, you have to turn the clock back to 2010, when Republicans, energized by President Barack Obama’s 2008 election, launched a massively successful effort to win seats in state legislatures. Their victory had dire consequences for abortion rights and access: Of the thousand-plus state-level abortion restrictions enacted since Roe’s passage, nearly half came into being in the last decade. And although anti-abortion activists spent the first half of the 2010s pursuing incremental laws that aimed to chip away at Roe, the push for outright abortion bans hit a fever pitch during the latter half of the Trump administration—and only sped up once President Joe Biden took office.
Since Ohio introduced the first six-week abortion ban back in 2011, nine of the nation’s reddest states have passed their own version of the restrictive bill. These “heartbeat bills,” as anti-abortion activists call them, outlaw abortion as early as six weeks into pregnancy based on the notion that cardiac activity can be detected that early. (At that point in pregnancy, an embryo does not have a fully developed heart.) Since many people women don’t know that they’re pregnant within those first six weeks, these bans essentially function as total bans on abortions—especially because these bills frequently lack exceptions for rape or incest.Until now, court challenges have put these six-week bans on ice, but that’s part of anti-abortion activists’ plan. Each outright abortion ban is designed to hand the conservative-leaning Supreme Court a chance to overturn Roe. In December, the Supreme Court is slated to hear arguments in the case of Dobbs v. Jackson Women’s Health Organization, a bill that bans almost all abortions after 15 weeks of pregnancy—and before fetal viability. Under current abortion jurisprudence, states are blocked from outlawing abortion that early into pregnancy. However, on Sept. 1, Texas enacted SB 8, a six-week ban that, unlike its predecessors, actually managed to go into effect. The Supreme Court initially declined to block the ban but has since heard arguments in the case.
Unlike past six-week bans, the Texas abortion ban is not enforced by the state government but by ordinary people. Individuals may sue anyone who “aids or abets” an illegal abortion—including, potentially, an Uber driver for taking a patient to an abortion clinic. A successful lawsuit nets $10,000 in damages. Ahead of the Texas ban’s enforcement, patients and providers desperately raced against the clock to provide abortions that would soon become illegal. One Texas doctor even performed 67 abortions in the hours before the ban took effect. But days later, abortion clinics saw a dramatic drop in their ability to help patients, as only a fraction qualified for abortions under the stringent law. Patients are now seeking abortions across state lines—and even international borders, since getting an abortion in Mexico is now easier than in Texas.This citizen-enforced law has spurred anti-abortion vigilantes to spread the word on how to enforce it. Supporters of the law have even created whistleblower websites that are meant to act as tip lines for possible violators (and abortion rights proponents have struck back with Shrek porn). Even Reddit had a short-lived abortion bounty hunter community that sought to enrich themselves with the reward money, although the community was banned for breaking the website’s rules about harassment.
How Does The Texas Abortion Law Work?
The Texas ban’s unique form of enforcement has bedeviled attempts to strike it down. When the Supreme Court declined to stop the ban, the justices didn’t rule on the law’s constitutionality but instead wrote that the case presented “complex and novel procedural questions” that had not yet been addressed. Lawmakers in other red states have now suggested that they are interested in adopting a version of the Texas ban. But the Supreme Court’s original refusal to act doesn’t mean that the court battle over the law is over. The Justice Department sued over the ban, leading a U.S. district judge to temporarily freeze it. A federal appeals court soon lifted that freeze, putting the ban back into effect, and ordered a round of oral arguments over the law. The Justice Department has since asked the Supreme Court to once again weigh in, and, in early November, the justices heard oral arguments in two challenges to the Texas ban. In the November oral arguments, however, Justices Brett Kavanaugh and Amy Coney Barrett suggested that they had some skepticism about the Texas law.But the fact that the Supreme Court at first chose not to act—and its willingness to consider a separate case that could overturn Roe—don’t bode well for the future of abortion rights in the United States. While state-level Republicans worked to pass abortion restrictions, President Donald Trump appointed three conservative justices to the bench: Neil Gorsuch, Kavanaugh, and Barrett. (Barrett’s personal lack of support for abortion rights is particularly well-documented.) All three justices supported letting the Texas ban take effect, alongside Justices Samuel Alito and Clarence Thomas.
Why Does the Texas Ban Threaten Roe v. Wade?
In March 2018, Mississippi’s Republican Gov. Phil Bryant signed into law a 15-week abortion ban. Like the Texas ban, the Mississippi law contained no exceptions for incest or rape and flies in the face of abortion jurisprudence that protects abortion ahead of fetal viability. (That benchmark is usually pegged at around 24 weeks of pregnancy.) Unlike the Texas ban, a federal judge has blocked the Mississippi law from taking effect, thanks to a lawsuit brought by the Jackson Women’s Health Organization, the last abortion clinic left standing in Mississippi.The Supreme Court is scheduled to hear oral arguments for Dobbs v. Jackson Women's Health Organization on Dec. 1. With six conservative justices, the case could very well mark the end of Roe.
What is the Mississippi abortion law?
In 1970, a pregnant woman named Norma McCorvey filed a lawsuit against Henry Wade, then the Dallas County district attorney, under the pseudonym Jane Roe. McCorvey and her attorneys argued that Texas law, which at the time prohibited abortions unless they were necessary to save the life of the mother, were unconstitutional. Eventually, the case made it all the way to the Supreme Court, which, in January 1973, ruled in favor of McCorvey. The ruling came too late for McCorvey: By that time, she already had her child and put her up for adoption. McCorvey would go onto to act as both a pro- and anti-abortion advocate, although shortly before her death she confessed that she’d only joined the anti-abortion movement because they paid her well.
What Is Roe v. Wade?
In Roe, the Supreme Court found the right to abortion was embedded in the right to privacy, which is not specifically listed in the Constitution but can be constructed through a few different legal maneuvers. The right to privacy described in Roe has its roots in other landmark cases—most notably, the 1965 case Griswold v. Connecticut, which expanded access to birth control. In other words, if Roe goes, it could unwind protections for other rights. Subsequent cases have refined and rewritten Roe’s findings, but the case now acts as a kind of ground-level protection for abortion access. Without it, states can be free to do as they please.
The Supreme Court will have a chance to weigh this very question in the Dobbs v. Jackson Women’s Health Organization case. And it’s not looking particularly rosy for abortion rights supporters right now.Although the abortion rights movement triumphed at the Supreme Court in a 2019 case, the justices have now agreed to evaluate whether “all pre-viability prohibitions on elective abortions are unconstitutional.” At least four justices must agree to take up a case in order for the Supreme Court to do so—which means that at least four justices are interested in revisiting what’s widely believed to be Roe’s core holding.The Supreme Court is expected to issue a ruling on Dobbs by next summer. Meanwhile, Democrats in the House have passed the Women’s Health Protection Act, which would codify Roe into federal law. The bill, however, is likely doomed in the gridlocked Senate.