We are about to lose the legal right to abortion.
The Supreme Court heard arguments on December 1 in the first direct challenge to Roe v. Wade in almost fifty years. The conservative majority has indicated that they support upholding a Mississippi law that bans abortion starting at fifteen weeks of pregnancy, a ruling that could undermine and possibly overturn Roe v. Wade, which legalized abortion nationwide in 1973.
We have to wait months to find out if our rights to bodily autonomy will be stripped away by nine unelected members of the court, but the prognosis doesn’t look good. The fact that the Supreme Court took up the case at all is a bad sign, especially because not a single federal court has ever upheld a pre-viability abortion ban like the one being considered in Mississippi.
Even if abortion rights supporters somehow score a victory in Dobbs v. Jackson Women’s Health Organization, it’s a hollow one. While holding on to the protections of Roe is critical, it also means maintaining a status quo where millions of people, primarily working-class people of color, don’t have meaningful access to abortion care.
Anti-abortion lawmakers have ramped up attacks on abortion access over the past ten years. From 2012 to 2019, at least 166 abortion clinics across the country closed and an estimated 11 million people seeking abortion in the United States now live more than one hour’s drive from an abortion clinic. Twenty-six states are likely or certain to ban abortion as soon as Roe is no longer in place, and the portion of people living over two hundred miles away from the nearest abortion clinic would increase from 1 to 29 percent.
We know what will happen in a post-Roe world because many already live in it. While affluent people will continue to access safe abortion care, even if that means traveling out of state, those who are marginalized and less affluent won’t be able to travel to access reproductive health care and will resort to unsafe abortions, just as in the days before Roe, or be forced to carry unwanted pregnancies to term.
It’s likely that the Supreme Court decides to send abortion “back to the states,” which will intensify the trend of placing access to reproductive health care entirely in the hands of anti-abortion lawmakers, their supporters in the federal courts, and the powerful right-to-life groups backing them, especially the Alliance Defending Freedom, the engine behind the Christian right’s legal agenda.
At the heart of the arguments heard on Wednesday was whether pre-viability abortion bans are constitutional. The viability standard was set as precedent in Roe, with the court leaving it to medical professionals to determine when a fetus could survive outside of the womb, and asserting a state interest in potential life once viability is reached, generally assumed to be around twenty-four weeks. Conservatives are attempting to roll back the gestational standard governing the legal right to abortion, claiming that fifteen weeks is when a fetus reacts to stimuli and is a more appropriate legal standard.
Some moderates have made the argument that, in the age of the founding fathers, abortion was legal until “quickening,” or when fetal movement could be detected, usually around fifteen weeks, thus making the Mississippi ban a compromise for constitutional originalists and abortion rights supporters alike. After the court allowed SB 8, a Texas law that effectively bans all abortions after the sixth week of pregnancy, to remain in effect, the conservative justices may point to the fifteen-week ban as a more moderate compromise.
But the conservative proposal to enact fifteen weeks as the new gestational standard is not going to satisfy the anti-abortion movement. And now that Mississippi has made clear that they are asking the court to overturn Roe, there will be nothing to stop states from enacting stricter bans.
Mississippi has a six-week ban on abortions that has been put on hold by lower courts, and if Roe is overturned, the state has already decided to ban the procedure altogether, except in cases of rape or “preservation of the mother’s life.”
The true goal of the Federalist Society judges and the Christian right is to replace the viability standard with the idea of fetal personhood, giving full legal rights and constitutional protection to embryos and fetuses. The concept of fetal personhood has been steadily gaining ground in conservative-controlled states and has been used to police pregnancy.
Not surprisingly, there is widespread discrimination in the implementation of pregnancy criminalization laws, which tend to be disproportionately enforced against low-income women and women of color. There are more than 1,200 documented cases of women being arrested because of their pregnancy outcomes since 1973.
Last year, Brittney Poolaw, a twenty-one-year-old Oklahoma woman, was convicted of manslaughter in the first degree and sentenced to four years in state prison after having a miscarriage at seventeen weeks and having her fetus test positive for drugs, including methamphetamine. And in 2019, Marshae Jones was charged with manslaughter in Alabama for losing her fetus after being shot in the stomach five times, guilty for supposedly starting the fight with the woman who shot her.
The focus now must be on fighting the criminalization of pregnant people and connecting the movement against abortion criminalization with the movement against police violence and the carceral state.
Texas’s SB 8 law deputizes civilians to police each other’s reproductive decisions and criminalizes people who provide abortion care. It’s imperative to protect those who are managing their abortions at home with the abortion pill and those providing care and assistance. Medication abortion is quickly becoming the most common abortion option in the United States, accounting for 40 percent of abortions every year, and that figure will only grow once Roe is overturned and access is even more severely limited.
Abortion pills are currently legal in all fifty states; the inspiring action by the group Shout Your Abortion, on December 1 in Washington, DC, featured mass distribution of boxes labeled “ABORTION PILLS” with info inside on self-managed abortion, and culminated with four members taking mifepristone in front of the Supreme Court.
A lot more people are going to have self-managed abortions through ingesting drugs like mifepristone because of a lack of access; it’s likely that some of those abortions will be done illegally, and that’s going to lead to more criminalization of those seeking and providing care.
Mifepristone is currently under strict restrictions from the Food and Drug Administration, though it suspended its dispensing requirement that patients physically visit a licensed health provider for the duration of the COVID-19 public health emergency. It’s now reviewing whether to remove the rule beyond the pandemic.
Fighting for the abortion pill to be permanently available by mail or over the counter, and spreading information on how to safely manage medication abortions at home and mitigate the legal risks, is becoming a focus for many reproductive rights activists and health care providers. Plan C is a key resource for information on accessing abortion pills online, and organizations like the Repro Legal Helpline and If/When/How are preparing to meet a future in which the criminalization of pregnancy outcomes continues to increase.
Many abortion supporters are decrying the court’s unwillingness to respect legal precedent and the hit to the court’s legitimacy and moral authority if it fails to uphold it. We should reject the idea that the Supreme Court ever had any moral authority to grant us bodily autonomy and reject the framework that protecting Roe is the extent of our demands.
While the Left can support the progressive lawmakers who have been calling for expanding the number of seats in the Supreme Court, our true power lies in building a fighting mass movement that advances a bold agenda for free abortion on demand, universal health care, and social support for everyone to have the families they want, when they want.
Things certainly look dire. Supporters of reproductive justice must use this low point to go on the offensive and connect the fight for abortion access to other movements, including for trans rights, free health care, and radical criminal justice reform. We can’t give up when the movement for reproductive freedom most needs radical energy.