Feminists, lawmakers, reproductive rights advocates and legal scholars begin to grapple with the gravity of what abortion access will look like in a post-Roe world.
Late Monday night, shock waves could be felt across the U.S. after a leaked draft opinion signaled the Supreme Court’s majority decision to overturn Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization case concerning a 15-week abortion ban out of Mississippi. The leaked opinion, when a final decision is issued before the end of the Supreme Court’s term (likely in June), represents the biggest blow to women’s constitutional rights in history.
Most court watchers expected the Court would rule in this way after reviewing commentary from the conservative justices during December’s oral arguments in the Dobbs case. Even still, after the news broke, the continued mood among feminists and abortion supporters has been one of collective shock and outrage. Hundreds of protesters flocked to the U.S. Supreme Court steps to stage peaceful demonstrations on Monday which carried into early Tuesday morning; crowds chanted “abortion is healthcare” and “we’re not going backwards.” Protests across the country are expected to continue in the coming days and weeks.
“We’re not going backwards!” pic.twitter.com/UG8nkYULJs— Charlotte Clymer 🏳️⚧️🇺🇦 (@cmclymer) May 3, 2022
Reactions from feminists, lawmakers, reproductive rights advocates and legal scholars have been pouring in as America begins to grapple with the gravity of what abortion access will look like in a post-Roe world.
Many are shocked at the bold language used by Justice Samuel Alito, who penned the leaked majority draft opinion. Prior to the leak, reproductive and legal commentators had warned that if the Court upheld the 15-week Mississippi ban, it would in fact be a de facto overturning of Roe, which guarantees the right to an abortion up to viability, or 26 weeks. Most abortion advocates anticipated a more tempered response where the justices would not admit they were overturning Roe outright. Alito’s opinion, on the contrary, spells out boldly its intention to abandon settled opinion (known as “stare decisis”): “Roe was egregiously wrong from the start. … We hold that Roe and Casey must be overruled.”
“While we anticipated this potential outcome, we share in the stun, insult and outrage cascading across the country,” said Debasri Ghosh, managing director of the National Network of Abortion Funds. “Whatever happens next, abortion funds will continue doing what they do best—helping people get the abortion care they need, when they need it.”
In his opinion, Alito took aim at the legal underpinning that formed the basis of both Roe and Casey, which hinge on the right to privacy inherent in the Constitution and the 14th Amendment’s due process clause. This same legal reasoning forms the foundation for the Supreme Court decisions that protect the right to birth control, same-sex marriage and interracial marriage—leading many to worry about the future of these protections too.
Alito’s draft opinion explicitly criticizes Lawrence v. Texas (legalizing sodomy) and Obergefell v. Hodges (legalizing same-sex marriage). He says that, like abortion, these decisions protect phony rights that are not “deeply rooted in history.” https://t.co/4690k0KG1F pic.twitter.com/urF7A02INU— Mark Joseph Stern (@mjs_DC) May 3, 2022
“The religious extremists and their lawmaker allies who helped pack the Supreme Court under Trump are willing to destroy our democracy to force all of us to live by their narrow beliefs,” said Americans United for Separation of Church and State president and CEO Rachel Laser. “They want a nationwide abortion ban. They will come for contraception. They will come for marriage equality and LGBTQ rights.”
Once finalized, the majority Court decision in question would allow individual states as well as Congress to pass their own laws on abortion—giving state-level lawmakers the ability to outlaw abortion at any point in a pregnancy, with no exceptions for rape, incest, or risk to the pregnant person’s health. “This will set us back decades,” tweeted Dallas-based lawyer Michelle Simpson Tuegel.
Michele Goodwin, host and executive producer of the Ms. podcast “On the Issues,” called the draft opinion overturning Roe v. Wade “a death sentence for Black and brown women.”
“Black women on [Medicaid] struggle to access abortions, contraception and sufficient sex education, as well as face higher levels of maternal mortality and food insecurity,” said Monica Simpson, executive director of SisterSong. “People often forget how interconnected the fight for reproductive justice and racial justice is. Abortion bans are another tool that target Black, brown and queer people’s right to bodily autonomy and safe communities.”
We who believe in the human right to make our own decisions about our bodies and futures cannot rest until this white supremacist patriarchal capitalistic system is abolished. #TrustBlackWomen#reproductivejustice— Monica Raye Simpson (@monicarsimpson) May 3, 2022
Of course, an undermining of abortion rights is bad news for all Americans, and will dramatically and irrevocably impact millions of lives. Women with access to abortion report better physical health outcomes, stronger financial and professional stability, and more successful romantic relationships, when compared to those who were denied an abortion.
“We don’t have to imagine what happens when people are denied abortion,” said Dr. Diana Greene Foster, director of research at Advancing New Standards in Reproductive Health. Foster is also the author of the Turnaway Study, a longitudinal study examining the effects of unwanted pregnancy on women’s lives, which found that 99 percent of women who received an abortion thought their decision to have an abortion was the right one, even five years later. “When people are unable to get wanted abortions, there are profound risks to their health and economic security, as well as a shift in the trajectory of their lives with negative effects on their relationships, aspirational plans, and the wellbeing of their children.”
“Without Roe providing the bare minimum access to a fundamental piece of reproductive healthcare, women experiencing unintended or unwanted pregnancies will be forced to carry to term and give birth against their will,” said Noreen Farrell, executive director of Equal Rights Advocates, which fights for gender justice in U.S. workplaces and schools. “Women will be forced to endure this outrageous loss of personal liberty in a country with the highest maternal mortality rate among developed nations, a lack of paid family leave, and income inequality.”
“Moms—and women—must be able to make our own decisions about our bodies, our lives and our futures,” said Diarra Aida Diouf, campaign director of maternal, reproductive and youth justice for MomsRising.
Though the leaked draft reflects U.S. domestic policy, the decision will likely have far-reaching effects around the world. “Each year, 25 million women around the world resort to dangerous and unsafe methods,” said Sarah Shaw, head of advocacy at MSI Reproductive Choices. “No one should be seeking to replicate this situation in the U.S.”
During the Trump administration, three new justices—Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—were confirmed to the Supreme Court. During their Senate hearings, all three were asked for their opinions on Roe and each expressed support for established precedent—and yet all three of Trump’s nominees joined Alito and Justice Clarence Thomas as co-signatories on the leaked majority opinion.
Over the last two years, a record-breaking number of abortion restrictions have been proposed across the U.S. All states that have passed extreme abortion laws are GOP-led.
For now, abortion is currently a constitutional right. But trigger bans are poised to take effect in 26 states if and when Roe is officially overturned—meaning 40 percent or more of the U.S. population is about to lose their right to an abortion. Moreover, recent reporting indicates the GOP and anti-abortion groups are eyeing a nationwide ban on abortion.
Abortion bans are not popular: Sixty percent of Americans believe the Supreme Court should uphold its 1973 decision in Roe v. Wade, according to a Washington Post-ABC News poll. Just 27 percent believe it should be overturned. When asked specifically about the Texas law that bans abortions after six weeks following a woman’s last menstrual period and is enforced by private vigilantes, an even larger percentage—65 percent—wanted the Supreme Court to reject the law. Seventy-five percent of Americans think the decision whether or not to have an abortion “should be left to the woman and her doctor.”
The decision to allow states to ban abortion outright also goes against almost all scientific consensus, as multiple studies show the negative health implications of restricting abortion access. “The draft opinion is unacceptable,” wrote the Committee to Protect Health Care. “It ignores the sanctity of the relationships between people [and] their doctors.”
“This is devastating and it is exactly what we feared as the Trump administration stacked the courts with extreme, anti-abortion judges,” said Dr. Jamila Perritt, president and CEO of Physicians for Reproductive Health and an ob-gyn in D.C “Legislators have long claimed that restricting abortion is intended to improve the health and well being of families. We know that this is blatantly false.”
The decision is also likely to embolden the anti-abortion contingency in the U.S. and spur violence in and around abortion clinics. Even before Monday’s leak, members of the National Abortion Federation (NAF) had already reported a dramatic escalation in anti-abortion activity over the last two years.
“A number of clinics are likely to see a rise in harassment and violence from extremists emboldened by this news,” said Melissa Fowler, chief program officer at the National Abortion Federation.
The Path Forward
The U.S. Congress has the ability to supercede state regulations to codify abortion rights at the national level, by way of the Women’s Health Protection Act. The bill passed the House of Representatives and awaits a Senate vote. In order to make it to the floor for discussion and a vote, though, the bill needs 60 senators’ votes—or 50 votes in favor of suspending the filibuster, along with Vice President Kamala Harris’s tie-breaking vote.
Abolish the filibuster. Codify Roe. Expand the Supreme Court. Protect abortion rights by any means necessary.— Cori Bush (@CoriBush) May 3, 2022
We need all of the above. This is an emergency.
For most feminists, then, the stakes for the November midterm elections just got even higher. “Women are voting,” warned Supermajority executive director Amanda Brown Lierman. “Any politician who fails to use their power to stop this attack on women and our bodies will be voted out of office.”
The decision has also renewed calls for the Equal Rights Amendment, which advocates believe may form a constitutional underpinning for abortion rights on the basis of sex discrimination.
Legal advocates also used the collective outrage to refocus efforts on court reform and renew calls to expand—or, as some say, rebalance—the Court.
“We must expand the Court to put a check on this increasingly lawless and hyper-partisan conservative majority,” said Alliance for Justice president Rakim H.D. Brooks. “We must fill every judicial vacancy by the end of this year. Progressives must focus our attention on state courts, which will now be a critical frontline in the fight to protect abortion rights. There are paths to restoring our rights, but we must recognize that they cannot be accomplished through business as usual. Conservatives spent decades laying the groundwork for this outcome, and our response must be commensurate to meet this moment.”
Beyond rage and shock, a through line present in most reactions to the bombshell opinion was one of determination and a continued pledge for activism.
“We are stunned, but we are resolved,” said Rebecca Hart Holder, executive director of Reproductive Equity Now in Massachusetts. “Regardless of the official decision issued in Dobbs v. Jackson, we will never stop fighting for the right to make deeply personal decisions about when and whether to become a parent.”
“It’s time for every single person—in every single state—to realize this impacts you, your choices, your rights,” urged Sen. Patty Murray (D-Wash.). “It’s not happening to someone else, in some other state—it’s happening everywhere, and the highest court in the land is preparing to rip away your rights at this very moment. We need to fight back with everything we’ve got right now. The right to abortion is on the line.”
Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.