The Supreme Court Clearly Doesn’t Care About Women’s Lives

Even as we recognize the implications of Dobbs on everyone, it’s time we start centering the voices of those who have always struggled to get abortion care.

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The Gay Pride March in New York City on June 26, 2022. The march took on a new sense of political urgency after the Supreme Court overturned Roe v. Wade. (Andrew Lichtenstein / Corbis via Getty Images)

Critical race theorists Lani Guinier and Gerald Torres famously wrote that the distress of the racially marginalized is the “first sign of a danger that threatens us all.” Even as we lament the loss of the right to abortion in Dobbs v. Jackson, it is also true that some women never actually received the full benefit of a liberalized legal regime. Poor women, rural women, many who are Black and Latina, were always living in pre-Roe world (let alone women in prison or in detention). The majority in Dobbs intentionally ignored these voices. Why? Because they are a powerful reminder of the people who are being crushed by this decision in the Supreme Court. 

If we pay attention to those whose lives have already been destroyed by an inability to access abortion, we can see our collective future and the depths the challenges to come. By centering the voices of those who have struggled to get care—even as we recognize the implications of Dobbs on everyone—allows us to predict at least three immediate consequences of last week’s decision.

First, and Dobbs proves this point, there will be a severe loss of access to abortion services for all women. We know this from the lives of poor, Black and Latina women in the United States at least over the past 50 years.  Most women who access abortion are Black and women of color have the highest numbers of unintended pregnancies. As stated by the Guttmacher Institute, these numbers reflect the difficulties of women in in minority communities in accessing high-quality contraceptive services. 

Among factors impacting access is poverty. The Supreme Court has long been unsympathetic to the needs of poor women. Thirty years ago, in two important cases about Medicaid and abortion funding, the Supreme Court made clear that the state is not responsible for poor women because the government does not cause poverty. Women are poor of their own making. 

To be sure, there were some signs that the Supreme Court actually had a heart in the recent cases Whole Women’s Health v. Hellerstedt and June Medical v. Russo when they acknowledged  the difficulties of poor women seeking an abortion in cases striking down laws designed to even further prevent access to the medical procedure citing issues of poverty and acknowledging race. But the Court’s composition changed following those cases, and today they return to their prior position, this time abandoning not only poor women, but all women.

The Supreme Court has long been unsympathetic to the needs of poor women. … Today they return to their prior position, this time abandoning not only poor women, but all women.

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Even when abortion was legal in the U.S., at least 1,200 women were arrested for pregnancy outcomes such as miscarriages or stillbirths. (Shepard Sherbell / CORBIS SABA / Corbis via Getty Images)

Second, we will see the prosecution of pregnant people. Conservatives often suggest that they do not like to prosecute pregnant women and that laws that target abortion are designed to be applied only against providers and those that aid and abet in an illegal abortion. This is not true.  Prosecuting women for their pregnancies, for their still births and their miscarriages has been a hallmark of laws supported by conservatives. For poor women and women who are drug users the penalties have been harshest: jail time, loss of custody of children and a lack of healthcare. 

Those who were paying attention to this attack on pregnant women and women who experienced pregnancy loss were not surprised by the recent attempt in Texas to prosecute Lizelle Herrera for her miscarriage. Asian-American women, Bei Bei Shuai and Purvi Patel, became famous examples of how far prosecutors were willing to go to prosecute women struggling with their pregnancies and lives. Last week’s opinion suggests that a national ban on abortion would likely be found constitutional. Many pregnancies would become suspect.  

Conservatives often suggest that they do not like to prosecute pregnant women and that laws that target abortion are designed to be applied only against providers and those that aid and abet in an illegal abortion. This is not true. 

Finally, we will see an increase in maternal mortality and morbidity. The World Health Organization notes time and again that unsafe abortions are a leading cause of maternal death and morbidity. The United States has the highest rate of maternal mortality of industrialized countries. The Centers for Disease Control and Prevention (CDC) notes that Black women are three times more likely to die from pregnancy-related causes than white women. Data from around the world suggests that when abortion is illegal, maternal morbidity and morality goes up. These health issues once solely facing Black women will now face all women with new levels of disparate impact on minorities. Its consequences will not be able to be written off, as Louisiana Senator Bill Cassidy tried to do when stating that the maternal death rate in his state is only bad “if you correct for race.”

The Dobbs decision paid no attention to the consequences overturning Roe would have on people’s lives. A robust response to the conservative attack on women’s rights and bodily autonomy requires doing what the Court was too afraid to do: Listen and elevate the voices of those communities and individuals who have been denied care, despite Roe’s protections, and those who will suffer due to the decision. 

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.

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About

Aziza Ahmed is Professor of Law and Co-Director of the Center on Global Health, Bioethics and Biotechnology at UC Irvine School of Law. She is the author of the forthcoming book Risk and Resistance: How Feminists Transformed the Law and Science of AIDS.