With a Supreme Court stacked with anti-abortion judges by our country’s only twice-impeached president, Roe’s limited guarantee of rights is more tenuous than ever.
The rule of law is under fire in this country—visibly so, after the Jan. 6 white supremacist insurrection—following years of destabilizing actions by the Trump administration, the U.S. Supreme Court, and rule-making bodies at every level that have been emboldened by the Republican Party’s spiral into extremism.
As lawyers and legal activists for reproductive justice, we appreciate the indispensability of the rule of law, even as we rebuke our legal system’s inequities and failures. The absence of swift legal repercussions for the insurrectionists and those officials who support them makes it clear: The rule of law is treated as malleable in a legal system rooted in racism, classism and xenophobia.
Moreover, the juxtaposition between the kid-gloves treatment of white supremacist rioters versus state violence directed at Black Lives Matter demonstrators shows plainly whose convenience, protection and security is most valued in this country. The very people who proclaim allegiance to “law and order” disgrace the rule of law, weakening its protective power and potential.
Which is why, on this anniversary of Roe v. Wade, we ask: While Roe remains the law of the land, who does it serve? After more than four decades of attacks, Roe’s central holding remains, protecting the constitutional right to abortion. But for millions, that right rings hollow with so many legal, financial and logistical barriers to care.
Abortion coverage bans mean many cannot afford to exercise their constitutional right. The Hyde Amendment (and Harris v. McRae, the 1980 Supreme Court case that upheld it), bars federal Medicaid funding for abortion; and in 35 states and the District of Columbia, there is no public insurance coverage for abortion, leaving access out of reach for people experiencing poverty.
In 37 states, young people under 18 are forced to involve a parent or else ask a judge for permission to end a pregnancy. And now, with a Supreme Court stacked with anti-abortion judges by our country’s only twice-impeached president, Roe’s limited guarantee of rights is more tenuous than ever.
Time and again, legislatures have passed unconstitutional restrictions on abortion, while anti-abortion judges defy principles of constitutional interpretation, such as stare decisis.
In the streets, the violent ideologues who defiled the Capitol are cut from the same political cloth—and in some cases are the same individuals—as those who terrorize abortion patients, commit violence against providers, and flout clinic buffer zones. Roe’s opponents have been welcomed much like the Capitol mob—invited to ignore the rule of law and Roe’s protections without recourse.
It is not difficult to imagine what America would look like without Roe, considering the ongoing decimation of abortion access and dozens of attempts to prosecute people for allegedly self-managing their own abortions at home. As with racial justice demonstrators disproportionately criminalized by state actors, people who end their own pregnancies are disproportionately targeted for arrest, detention and prosecution in a criminal system that targets marginalized and oppressed communities, especially Black, Indigenous and people of color.
It feels different, this year, to talk about Roe’s shortcomings when we are so close to losing the protections that remain. Trump’s Supreme Court appointees Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch have shown they will seize every opportunity to rule against abortion, already singling out abortion for regulation during a pandemic by forcing people to secure medication abortion in person, despite telemedicine’s safety and efficacy.
But the truth is, Roe still isn’t enough, and we must use all of the legal theories and organizing tools at our disposal both to protect and defend people who are criminalized and to change the system itself to prevent future incursions on reproductive freedom.
The evisceration of Roe is key to the white supremacist, misogynist agenda to increase surveillance, criminalization and control of the reproductive lives of BIPOC and low-income people. No Roe-friendly single- or even double-term presidential administration can turn the tide entirely. It will take decades to dismantle the systems that punish people for their reproductive decisions and replace them with systems that realize reproductive justice for all.
We are devoted to this work. We welcome law students and lawyers to join us as we improve abortion access for people who self-manage, young people, and Medicaid enrollees, and fight to increase dignity and rights for birthing people and parents who use public benefits. We invite anyone with legal knowledge and skills to join our Reproductive Justice Lawyers Network, which organizes and trains legal professionals to provide pro bono support for reproductive justice with an anti-racist, intersectional analysis. If/When/How’s RJ lawyers come from all backgrounds and experiences—from criminal defense to corporate law and more—and are connected to those who need their skills most.
What better day than the Roe anniversary to join us at the cutting edge of reproductive justice lawyering?
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