WHIPLASH: WHAT IS HAPPENING WITH ABORTION IN THE U.S.?
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The evening of May 3rd 2022, Politico published a 98-page document leaked from none other than the Supreme Court of the United States of America. To the outraged horror of the left and the victorious glee of the right, this draft majority opinion authored by Justice Samuel Alito would seek to overturn the federal protection granted to abortion by cases Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), transferring instead authority over this matter to state governments. This would effectively end blanket constitutional protection everywhere in the nation and allow states to individually decide whether abortion should be legal within their borders.
The text reads thus:
“Roe was egregiously wrong from the start…We hold that Roe and Casey must be overruled…It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
How did we reach this point? What are the potential consequences if these federal protections are erased? What are the legal justifications, if any, behind this leaked opinion? Can the Biden administration do anything to stop this from happening?
These questions can only be answered with an in-depth understanding of the history of abortion in the United States. A review of how it became legalized, the propagandistic and activist methods used by anti-abortion agents (sometimes peaceful, sometimes violent) and the legal struggles on both sides of the aisle will help us to better understand the current climate.
Few issues inflame passions such as reproductive rights in North American politics and culture; one need only see the flurried headlines and gnashing of teeth following the leak of this opinion. Nearly 1 in 4 Americans state that reproductive rights, either for or against, are a key voting issue when selecting their candidate, and 24% of US adults say they will only vote for a candidate who aligns with their views. Abortion is clearly a decisive element on the political landscape.
How did abortion become such a central element in American political discourse? It did not take hold of the minds and hearts of one quarter of the population in purely organic fashion. No, abortion was actively inserted as a hot-button issue by actors who gained benefit from doing so.
How did it all begin?
HISTORY OF ABORTION IN THE U.S.
Before Roe v. Wade in 1973, the case that granted constitutional protection to abortion (the same case called into question by this leaked draft majority opinion), abortion protection in the U.S. varied by state. New York had the most liberal policy, along with Washington, Alaska, and Hawaii, which had residency requirements. Thirteen states allowed for legal abortion under certain circumstances, while all the rest prohibited the practice unless to save the life of the pregnant woman.
In 1969, Norma McCorvey sought an abortion in the state of Texas. Under the pseudonym of Jane Roe, she sued district attorney of Dallas Country, Henry Wade, alleging that the law infringed upon her right to personal privacy. When brought to the U.S. Supreme Court, the final decision was that a woman’s decision to have an abortion during the first trimester is to be left to her and her doctor, effectively confirming that the Constitution recognized a woman’s right to abortion, based on her aforementioned right to privacy.
The ruling split pregnancy into three trimesters: during the first, the decision to terminate the pregnancy remained at the woman’s discretion alone. During the second, the state could regulate (but not outlaw) abortions in the interest of the mother’s health. After this second trimester, the fetus becomes viable (meaning it could potentially survive outside the womb), and the state could regulate or outlaw abortion except when necessary to preserve the mother’s life or health.
This ruling’s trimester system to determine when a fetus becomes viable touches on a core issue of the abortion debate. On one side, the National Right To Life Committee (NRLC), which calls itself “the nation’s oldest and largest pro-life organization,” clearly and categorically asserts that “the life of a baby begins long before he or she is born. A new individual human being begins at fertilization…”.
On the other, medicine and science have traditionally been open to a more liberal interpretation and allowance for gray zones in determining when life begins, with some suggesting five developmental stages: 1) fertilization, when a zygote is formed, 2) gastrulation, two weeks after fertilization, 3) 24-27 weeks of pregnancy, when brain-wave patterns emerge, 4) when the fetus becomes viable outside the uterus, as determined by Roe v. Wade, and 5) birth itself.
In any event, none of this ended up mattering to McCorvey. By the time she had won her case in 1973 after a lengthy legal battle, she had given birth and placed her daughter for adoption.
Could McCorvey have foreseen that her case would give rise to a virulent anti-abortion tide?
BEGINNINGS OF THE ANTI-ABORTION MOVEMENT: A DARK SECRET
Evangelical Christians are currently one of the leading voices in so-called “right-to-life” or anti-abortion movements.
But this was not always the case. At the time of Roe v. Wade, most Evangelical leaders hardly gave the “unborn” so much as a nod. Yet today, abortion is their cause célèbre. What changed? Why did this issue become so dear to a collective that accounts for approximately 30% of the U.S. population, or around 100 million people?
This is a story of politics and power. A story of both sincerely held belief and of scientific falsehood. A story of murky origin, tinged with racism.
In the 1970s, the stench of the Watergate scandal was still fresh in the air and Republicans and social conservatives badly needed a win. Conservatives such as Paul Weyrich, political activist and co-founder of the Heritage Foundation, along with Jerry Falwell, a preacher of celebrity status with his own religious educational institutions and media channels, were betting on Ronald Reagan as their winning horse.
These men recognized the potential political power of Evangelicals to launch their preferred candidate to victory but could not seem to bring them together as a voting bloc. In fact, Weyrich had tried to unite the Evangelical community through a number of different issues, including pornography, prayer in schools and the feminist Equal Rights Amendment, to no practical avail.
Many Evangelicals claim that abortion was the spark that finally lit their political flame.
This is simply not true.
Abortion came later; the actual issue Weyrich used to ignite Evangelical political activism was much more unsavory.
After Brown v. Board of Education mandated the racial integration of schools in 1954, many white southerners formed so-called “segregation academies,” which were essentially whites-only institutions that registered as not-for-profit charities and were therefore exempt from paying taxes. Jerry Falwell himself opened his Lynchburg Christian Academy (later named Liberty Christian Academy) as a “whites-only” school for the first two years of its existence.
One fundamentalist school in South Carolina, Bob Jones University, attracted special Internal Revenue Service attention for its refusal to integrate. This institution’s rejection of black students caused it to lose its tax-exempt status in 1976, much to the ire of many Evangelical leaders. Enraged, in reference to the loss of this status, Falwell stated: “In some states it’s easier to open a massage parlor than to open a [whites-only] Christian school.”
And just like that, Weyrich had found the issue to finally bring Evangelical leaders together. In his own words: “What changed their mind was Jimmy Carter’s intervention against the Christian schools, trying to deny them tax-exempt status on the basis of so-called de facto segregation.”
Abortion did not bring Evangelicals together as a political power to vote for Reagan.
Racism did.
Yet, even 50 years ago, the use of racial discrimination as a rallying cry would have seemed distasteful. Men like Weyrich and Falwell knew that they needed to find something more palatable to the public.
Something like abortion. The problem was, Evangelicals seemed not to care.
How could Weyrich stoke their outrage?
POLITICS AND THE ORIGINS OF ANTI-ABORTION ACTIVISM
Until this point, Roman Catholics had been the loudest anti-abortion voice in the country. Evangelicals had remained largely silent when Roe v. Wade was passed, with some leaders even gently supporting the legislative change. In fact, delegates to the Southern Baptist Convention (SBC), the largest Baptist group in the country, said that “Southern Baptists work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” In the wake of Roe, the SBC’s president, W. A. Criswell, said, “I have always felt that it was only after a child was born and had a life separate from its mother that it became an individual person, and it has always, therefore, seemed to me that what is best for the mother and for the future should be allowed.”
Hardly the categorical Evangelical denunciation of abortion we see today.
However, abortion rates had risen over the course of the 1970s, making some citizens feel uncomfortable. In 1978, pro-life Republicans beat out Democrats in Minnesota and in Iowa elections, proving that their anti-abortion stance had political clout with voters.
And Weyrich noticed.
In 1979, Weyrich encouraged Falwell to found an organization called The Moral Majority, whose mission consisted of bringing together conservative voices in the United States to act as a political force through voter registration, lobbying, and fundraising activities to bring Reagan to the White House. Along with a denouncement of homosexual and women’s rights, abortion was one of their main battle cries. And yet, once again, Ed Dobson, a former ally to the movement, clarified: “…[in its beginning] I sat…with the Moral Majority, and I frankly do not remember abortion ever being mentioned as a reason why we ought to do something.” In other words, contention over race brought them together; abortion only came afterward.
So, how did abortion come to dominate both the Moral Majority and the nation’s conversation? This did not happen organically. Rather, abortion was actively and conscientiously inserted into the discourse to stoke voter passions and guarantee their participation in the polls.
A powerful tool to do so was audiovisual media. Weyrich, Falwell, and others turned to Francis A. Schaeffer, an intellectual figure in religious right circles, who believed that abortion would lead to infanticide and euthanasia. In collaboration with surgeon C. Everett Koop, he made a cinematographic series entitled Whatever Happened to the Human Race?, whose descriptions of abortion were of the most graphic sort. Real and fictional depictions included comparisons between aborted fetuses and the Black slaves of America’s past, as well as disquieting footage of countless dolls strewn about the shores of the Red Sea in representation of aborted fetuses. Set to eerie background music, the camera pans over the plastic dolls tossed helter-skelter on the sand while a voice-over narrates the abortion process in rather gruesome language, clearly intended to horrify:
“…the surgeon then scrapes the wall of the uterus…cutting the baby’s body to pieces. An alternate method…is called suction abortion. A powerful suction tube is inserted through the cervix. This tears apart the body of the developing baby and its placenta, sucking them into a jar. Small parts of the body are recognizable as arms, legs, head, and so forth. Another common type is the saline, or salt poisoning abortion, or as it is called, ‘salting out.’ This method is carried out after sixteen weeks of pregnancy when enough fluid has accumulated in the sack around the baby. A rather long needle is inserted through the mother’s abdomen, directly into the sac surrounding the baby, and a solution of concentrated salt is injected. The baby breathes it in, swallows the salt and is poisoned by it. The outer layer of skin is burned off by the high concentration of salt. It takes about an hour to slowly kill the baby by this method. The mother usually goes into labor a day later and delivers a dead, shriveled baby.”
At this point, there is a certain paradox that bears mention. While the Moral Majority sought the election of Reagan, Jimmy Carter, the then-incumbent president, and Reagan’s opponent, was himself an Evangelical, yet too liberal for the likes of conservative Weyrich. He wanted him gone and was willing to bend the truth to do so. Weyrich blamed him for the removal of the tax-exempt status for Christian academies that refused to integrate, but in reality, this policy was imposed by the Republican Nixon of Watergate fame, and Bob Jones University lost its tax-exempt status one year before Carter even took office. Moreover, while Carter did not seek to outlaw abortion outright, he did attempt to reduce abortion rates; Reagan, on the other hand, signed the most liberal abortion bill in the nation during his term as governor of California in 1967.
By the time Reagan’s presidential election came around, these facts, which did not fit the conservative narrative, were conveniently forgotten.
Falwell’s Moral Majority achieved its goal when Reagan won the White House in 1980. While several factors such as the Iran Hostage Crisis played a role in Carter’s defeat, Falwell himself often stated a Harris poll that said Carter would have won the popular vote by 1 percent had it not been for the religious right. “I knew that we would have some impact on the national elections, but I had no idea that it would be this great.”
Carter was out, Reagan was in, and abortion as a firebrand issue -and a tool for political mobilization- was here to stay. And those opposing abortion were about to become even more fired up than ever. Republicans had learned that they could win elections on an anti-abortion ticket; a lesson they continue to apply even today. Abortion had become an official part of the party platform.
First came another film in 1984: The Silent Scream. Produced by the National Right To Life Commission, its 28 minutes feature an ultrasound that depicts a 12-week-old fetus being aborted and apparently screaming in silence while writhing in pain.
Though many medical professionals have debunked the film as intentionally misleading and scientifically unsound (a 12-week-old fetus cannot feel pain or make purposeful movement, it does not have lungs to scream as shown in the film, etc.) Reagan made reference to it: “It’s been said that if every member of Congress could see that film, they would move quickly to end the tragedy of abortion.” The film was aired on network news and widely disseminated around the nation. It even caused a Senate Judiciary Subcommittee hearing on the subject of fetal pain.
This became a core element of the anti-abortion movement’s strategy: to drive home the potential pain of the unborn fetus. Whereas arguments about the sanctity of life often fell flat, graphic images such as those in The Silent Scream seemed to work. The NRLC even disseminated materials with gruesome images of a fetus being stabbed by scissors.
There are examples aplenty of the use of the visual image in these activist circles. John and Barbara Willke’s Handbook on Abortion, called by some the “Bible of the pro-life movement,” contained pictures of aborted fetuses, and were spread throughout the community. During public marches and protests, in addition to pictures of in utero and aborted fetuses and models and fetuses in jars, supporters often used dolls and pins of fetuses to make their political point.
Others made an emotional appeal by different means, styling themselves as human rights activists in their quest to stop the killing of the unborn. Certain activists compared abortion to the Holocaust, while others said that abortion was similar to 1857’s Dred Scott decision, which ruled that black people were not U.S. citizens and were therefore not protected by the Constitution, insofar as the fetus was seen in the same way through the eyes of the law. A particularly ironic turn of events, considering the Evangelical numbers who swelled anti-abortion ranks owed their political beginnings precisely to an attempt to maintain racial segregation, as we saw with Bob Jones University, Patrick Weyrich, and Jerry Falwell.
This visceral messaging succeeded in stirring public passions; abortion, hardly discussed before, was now firmly entrenched as a subject of national debate. In other words, abortion had been deliberately pounded into valuable political currency.
In 1985, the March for Life protest held in Washington DC on January 22, counted 70,000 participants. Reagan lent his support by broadcasting a telephone call via loudspeaker: “Our response to the twelfth anniversary of Roe vs. Wade…must be to rededicate ourselves to ending the terrible national tragedy of abortion…”
Anti-abortion activists did not limit themselves to peaceful protesting. In the months before this protest, violence against abortion centers had increased, with bombings, arson, and harassment. Even earlier, in 1982, Dr. Hector Zevallos and his wife had been kidnapped by anti-abortion activists calling themselves the “Army of God,” and held hostage for a week.
These numbers would only grow over time; the National Abortion Federation’s statistics on violent acts against abortion providers in the US and Canada between the 70s and the 2000s list 8 murders, 17 attempted murders, 41 bombings, 175 acts of arson, and a whole litany of other violent acts making for a total of 6,143 incidents.
One of the loudest, most radical groups was Operation Rescue. Founded by Randall Terry, the organization often employed tactics deemed by others as aggressive: while protesting outside of abortion clinics, they would taunt healthcare workers, show graphic images of fetuses, harass women attempting to enter, and attempt to physically block the entrance. Jerry Falwell, our celebrity preacher, and founder of the Moral Majority, supported this organization, lending vocal support at a press conference during a 1987 protest and monetary support in the form of a $10,000 donation.
During the 1980s and 90s, they brought their protests on a nationwide tour, leading to several arrests and managing to shut down multiple clinics. In 1991, they organized “The Summer of Mercy” in Wichita, Kansas, which shut down local clinics and lasted for six weeks. More than 2,700 protestors were arrested.
In 1993, founder Terry sought to expand the group’s objectives, opposing homosexuals and other minorities, said the following:
"I want you to just let a wave of intolerance wash over you. I want you to let a wave of hatred wash over you. Yes, hate is good … Our goal is a Christian nation. We have a Biblical duty; we are called by God, to conquer this country. We don't want equal time. We don't want pluralism."
However, after President Clinton signed the Federal Access to Clinic Entrances Act in 1994, mandating fines and jail time for those who employed Operation Rescue’s tactics, Terry left the organization.
In 1998, Operation Rescue’s violent legacy reached its apex. One of Terry’s closest followers, James E. Kopp, followed a New York abortion doctor to his house and murdered him through the kitchen window. After fleeing to France, he was finally extradited and sentenced to twenty-five years in prison in 2003.
After all was said and done, gruesome images and violence, while effective to a certain extent, could not change the law or a public opinion that was increasingly pro-choice. Anti-abortion activists needed a new strategy.
LEGAL CHALLENGES TO ABORTION IN AMERICA
Although many anti-abortion activists made their voices heard through both peaceful and violent protest, there were also those who sought to achieve their means through legal channels. Indeed, despite the eye-grabbing tactics of their louder fellow activists, this legal struggle is what arguably laid the foundation for the current situation today with the majority draft opinion leaked from the Supreme Court.
The first way they did this was by pushing control of abortion at state level. In 1982, Pennsylvania introduced restrictions to Roe v. Wade that required minors to obtain parental consent, added a 24-hour waiting period on women before they could obtain an abortion, and required married women to inform their husbands. In 1992, this case reached the Supreme Court with Planned Parenthood v. Casey. The court did not strike down Roe v. Wade, but it did rule that states could pass abortion restrictions, provided they did not pose an “undue burden” on pregnant women.
And herein lies a specific controversy roiling beneath the various abortion restrictions that different states have tried to pass ever since. What does “undue burden” mean? Some states passed laws requiring counseling or additional restrictions on physicians and hospitals, and it was up to judges to decide whether these restrictions posed an “undue burden.” Some have argued that for a woman with financial resources and a car, not many restrictions would pose an undue burden. However, for a poor woman in a rural area without personal transportation, a two-trip requirement would pose an incredible burden. The determination of “undue burden” remains subjective.
At this point, it is important to mention that, although Casey allowed states to pass tougher abortion restrictions, it still upheld Roe. This was because of stare decisis, which means following the precedent of previous cases. This is another example confirming that it is highly uncommon for courts to reverse their own opinions, which makes the leaked majority opinion even more surprising.
“It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today,” said the Justices in 1992.
Although the ruling did away with the trimester framework in allowing states to prohibit abortions earlier during pregnancy, it did restate that the right to privacy, upon which abortion protection is based, places individual decisions on abortion and family planning within “a realm of personal liberty which the government may not enter.”
The National Right To Life Committee, the organization behind the film Silent Scream, further fanned the flames of the debate in the 90s by coining the term “partial birth abortion,” deliberately commissioning drawings of the practice and paid advertisements to spark public outrage. Douglas Johnson of the NRLC stated “as the public learns what ‘partial-birth abortion’ is, they might also learn something about other abortion methods, and…this would foster a growing opposition to abortion.”
What is this so-called “partial birth abortion?”
In medical terms, this procedure is known as “dilation and extraction,” or D&E, removing the fetus intact by dilating the cervix and removing the entire body through the birth canal. This practice is only conducted when absolutely necessary and, in the year 2000, for example, only accounted for 0.2 percent of the 1.3 million abortions carried out that year.
Nevertheless, politicians seized on the inflammatory term and repeated it ad nauseum. Representative Charles Canady, a Republican from Florida, proposed a bill that would make it a crime to perform a “partial-birth” abortion in 1995. It spiraled upward through the legal system from there, with President George W. Bush signing a law in 2003 to prohibit doctors from deliberately executing this sort of procedure after an 8-year battle in Congress. The U.S. Supreme Court upheld this ban on dilation and extraction in Gonzales v. Carhart.
“Partial-birth abortion” is not the only term the NRLC introduced into the popular lexicon. In 2012, Representative Todd Akin shockingly asserted that women who are victims of “legitimate rape” seldom become pregnant. “The female body has ways to try to shut that whole thing down." It turns out that Dr. John C. Willke, former president of the NRLC, first published this idea in a 1985 book. In a 2012 interview, he insisted: “This is a traumatic thing—she’s, shall we say, she’s uptight. She is frightened, tight, and so on. And sperm, if deposited in her vagina, are less likely to be able to fertilize. The tubes are spastic.” Never mind that top experts in reproductive health rule out this unlikely circumstance.
In addition to introducing the terms “partial-birth abortion” and “legitimate rape” as talking points, the National Right to Life Commission also developed legal models to push legislation, so that 18 states have adopted 20-week abortion bans. The most conservative states have continued to gradually inch toward greater abortion restrictions to the extent that Roe v. Wade would legally allow, challenging the definition of “undue burden” to its limit, up until current times.
Texas is home to some of the most draconian of these measures. Known as SB 8, this law bans most abortions, even in cases of rape or incest, as soon as there is detectable cardiac activity (note that this is not a heartbeat; it is only an electrical current inside the fetus). This normally comes at around six weeks of pregnancy, at which point the majority of women are unaware that they are pregnant. Moreover, this Texas law appoints private citizens to sue anyone who “aids and abets” a procedure, meaning that individuals with no connection or relation to the patient or healthcare facility may sue women, physicians, and even cab drivers, and recover legal fees, along with an extra $10,000 if they win. Some see these $10,000 as a possible bounty for informing on fellow citizens.
Mississippi is another case, making most abortions illegal after 15 weeks; even more stringent is the bill that was recently approved by Oklahoma lawmakers, which would make abortion illegal right after conception, effectively outlawing it. This law also provides for civilian-enforced vigilante justice, similar to the Texas law. Governor Kevin Stitt has stated that he would sign all anti-abortion bills the Legislature sends to him, so this reality will most likely become law if the Supreme Court draft becomes law and constitutional protection for abortion is removed.
The arrival of former Republican president Donald Trump on the political stage infused the anti-abortion movement with renewed energy. While his running mate, Mike Pence, was openly Evangelical and anti-abortion, Trump himself also made his anti-abortion stance clear. During a presidential debate, he said: “I am pro-life,” that authority over abortion rights would revert to the states, and that Roe v. Wade would be “automatically” overturned because he would put pro-life Justices on the Supreme Court. A strikingly prophetic statement, considering current circumstances and the subject of this article.
It is interesting to note his similarity on this point with Reagan, who made his anti-abortion stance a bastion of his campaign, even though he had signed liberal abortion laws while governor of California. Just like Reagan, when Trump was interviewed on NBC’s Meet the Press back in 1999, he had said “I’m very pro-choice,” adding that this position was due to “a little bit of a New York background.” A far cry from his promise to return abortion rights to the states and put anti-abortion Justices on the court during his presidential run.
Why the about-face? One possible explanation is that Trump won the 2016 election with 80% of the Evangelical vote. He would be beholden to this demographic, one of the most vocal anti-abortion groups in the nation. Simply put, if he wanted to continue to receive their support, he needed to give them what they wanted.
And he would do that through the Supreme Court.
How?
THE SUPREME COURT: HOW IT WORKS AND WHY IT MATTERS
To understand Trump’s role in the existence of the leaked opinion, a brief explanation regarding the structure and operation of the Supreme Court is in order. The Court consists of nine Justices whose positions are lifelong. The president must first nominate their candidate, who then undergoes a Senate confirmation hearing procedure. While nominees, in theory, apolitical, given that Justices should be impartial, it is often understood that any given president will nominate candidates sympathetic to their political leanings, either rightward or leftward. And once appointed, these Justices hold enormous political power to shape the nation’s direction; the case at hand with the leaked draft majority opinion is a clear-cut example of this power.
Republicans have made this political power their own. In 2016, then-President Barack Obama nominated Justice Merrick Garland to fill the vacancy left by Justice Antonin Scalia, a man who had been well-known for his leaning on conservative jurisprudence prior to his death. This appointment would have tipped the scales in a liberal direction.
However, before Obama could even name his nominee and only a few hours after Scalia’s death, Republican Senate majority leader Mitch McConnell had already announced that he would declare any appointment by Obama to be null and void and was planning to block the vote to confirm his nominee before he could even be considered as a possibility. This was because, McConnell argued, the next Justice should be appointed by the incoming President, who would be elected later in the year, and not sitting President Obama. McConnell’s power grab was particularly shocking because there had been no precedent for such an action since the Civil War in the 1860s.
This vacancy was therefore conveniently waiting for Trump when he came to power. It enabled him to deliver a quid pro quo to the conservative voters who had launched him to victory, nominating Neil Gorsuch to replace Antonin Scalia in 2017. He later had the opportunity to replace two more Justices, appointing Brett Kavanaugh and Amy Coney Barrett, thereby forging a 6-3 conservative majority in the highest court of the land.
Trump reaped political rewards for this move. After promising to stack the Supreme Court in order to overturn abortion rights (and delivering on his promise), religious figures called him the “most pro-life president” ever. The NRLC endorsed his re-election. The president of the Southern Baptist Theological Seminary announced his support in 2020, largely because of the abortion issue. And in January of 2020, in an act to solidify his bond with his anti-abortion voters, Trump was the first U.S. President to speak at the March for Life rally.
Trump clearly knew his audience.
We have now reached current times, with the famous leaked draft opinion’s stunning reversal and disregard for stare decisis. It is so stunning, in fact, that it begs the question: how can the Court invalidate jurisprudence nearly 50 years old? And why would they do so, at a time when the majority of the U.S. public supports expanding, and not limiting, reproductive rights?
HOW COULD ROE V. WADE BE REVERSED?
When Justice Samuel Alito, the author of the leaked opinion, underwent his Senate hearing in 2006, he specifically stated that Roe v. Wade deserved “respect,” but refused to call it “settled law.” In 1985, while working as Justice Department lawyer, he wrote a memo stating that the government “should make clear that we disagree with Roe v. Wade.” In 1991, during Planned Parenthood v. Casey, he used his dissent to argue that women should notify their husbands before having an abortion. Considering his track record, it should not come as a surprise that he might seek to narrow the protections afforded by Roe v. Wade.
Alito asserts that Roe v. Wade wrongly granted constitutional protection to a woman’s right to abortion and that the right to abortion was not “deeply rooted in this nation’s history.” The Roe ruling based the right to abortion on the 14th Amendment, which protects due process rights and came into force directly after the Civil War and the end to slavery. The Supreme Court found that this amendment protects a person’s right to privacy, the foundation upon which Roe v. Wade was decided. Alito bases his argument on state laws from 1868, arguing that while ratified to protect the rights of former slaves, 28 of the 37 U.S. states that existed at the time “had enacted statutes making abortion a crime,” thereby backing up his claim that abortion does not have historical precedent in the U.S.
Justice Amy Coney Barrett, a Trump appointee to the Supreme Court and an outspoken Catholic, has a voting track record favorable to anti-abortion positions. Some experts hold that they expect her to overrule Roe, evidenced by the fact that Trump had said he would only appoint Justices committed to reversing the case and there is no reason to believe that he did not honor this promise when he appointed her.
Justice Neil Gorsuch, another Trump appointee, has also donated to anti-choice politicians, supported another politician to defund Planned Parenthood, and compared hospitals providing abortion services and assisted suicide.
Although Trump’s third appointee, Justice Brett Kavanaugh, has made comments that seem to indicate a stance more moderate than his colleagues, his voting record has consistently backed abortion restrictions.
Most blatant in his opposition to abortion is Justice Clarence Thomas, appointed by George H.W. Bush, who wrote that Roe v. Wade “created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.” He further states that “our abortion precedents are grievously wrong and should be overruled…the idea that the Framers of the Fourteenth Amendment understood the Due Process Clause to protect a right to abortion is farcical.”
It is important to note that the leaked document at hand is a draft and is therefore not set in stone. The actual ruling, which should come in late June or early July of 2022, may finally not overturn Roe v. Wade. However, in light of all the aforementioned, it appears quite likely that the Court will indeed rule to overturn the protections granted by Roe v. Wade, given the conservative-leaning composition, legal standing, and track record of the current Justices.
If overturned, the consequences could be swift. Twenty-three states and territories would implement an immediate ban, and 13 have so-called “trigger laws,” which are designed to “go off” and make abortion illegal when and if the Supreme Court rules to prohibit the practice. Conversely, other states including California, New York, Oregon, and Washington have codified abortion rights into state law to guarantee their protection.
Yet consequences are much farther-reaching than the sphere of abortion alone. Kathryn Tullos, a Texas native and current chair of Democrats Abroad Spain, is a professor specialized in Women's Studies and Law. She argues that, while many different protections could be struck down, the two currently most vulnerable are those granted by Obergefell v. Hodges, which legalized same-sex marriage, and Griswold v. Connecticut, which broadly legalized the use of contraception. Other legal experts even assert that federal protection for interracial marriage could now find itself in jeopardy, maintaining legal protection in certain states, but not in others.
In this scenario, with the removal of federal protection for abortion, and possibly other rights, we would be facing a patchwork of states with different laws wherein women would be forced to travel to different states to have an abortion. In the event of a national ban on abortion from Congress, Tullos mentions the possibility of forced international travel to Mexico, Canada, or Europe for an abortion.
Tullos further expounds, mentioning that “trying to enforce a travel ban, which many legislators are interested in doing, is really constitutionally difficult to grasp, because freedom of movement is one of the basic liberties that the Constitution guarantees. When you start telling people you can’t travel for a particular purpose, you’re really looking at a police state.”
President Joe Biden has made clear his displeasure with the possibility that the Supreme Court might overturn Roe v. Wade, categorizing the decision as “radical.” “It goes far beyond the concern of a right to choose,” he says. “It goes to other basic rights, the right to marriage, the right to determine a whole range of things.”
But can the Biden administration actually do anything to stop this from happening?
PUSHBACK AGAINST THE LEAKED DRAFT MAJORITY OPINION
A mere 12 hours after the document leaked, Senate Majority Leader and Democrat Chuck Schumer announced that “it is my intention for the Senate to hold a vote on legislation to codify the right to an abortion in law” as a safeguard against the possible repealing of Roe v. Wade.
On May 11, a vote was held in the Senate, ultimately failing to protect abortion rights with a tally of 49 for and 51 against. All Republicans and Joe Manchin, a Democrat known for his conservative leanings and openly anti-abortion stance, voted against the measure. After the vote, Vice-President Kamala Harris bemoaned the result: “Sadly the Senate failed to stand in defense of a woman’s right to make decisions about her own body.”
Even without Manchin voting against his party’s lines, this vote was doomed from the start. While Democrats occupy 50% of the Senate and Vice-President Harris can break any tie with their Republican counterparts, it was all but certain that the Republicans would make use of the filibuster to stall the bill. As such, this vote was intended to be merely symbolic in nature, a display to the American public of the administration’s disapproval of the Supreme Court opinion and their solidarity with reproductive rights.
So, is there any legal recourse left?
Tullos mentions the possibility of looking for loopholes; for example, using the argument of the mother’s right to life if she has a dying fetus inside of her, predicated on the question: “Does she have the right to life, or only the fetus?” This could lead to litigation on the margins in some jurisdictions.
But “legally, options are limited. Politically, trying to push on someone like Ted Cruz [a Republican Texas senator well-known for his conservative positions] is a waste of time. Cruz always says, ‘It’s what the founding fathers wanted,’ which keeps you stuck in a worldview of the 1700s.”
Tullos advocates for citizen involvement in the democratic process as a solution to protect abortion rights. “It is up to the ordinary citizen to vote like crazy in the local races. If you can start changing the complexion of state legislatures, you’re going to start getting traction…you might be able to start breaking some strangleholds because public opinion is clearly on the side of reproductive rights. Which is why voting in down-ballot races, in midterms, when there isn’t a presidential race at the top of the ballot, is absolutely essential.”
Biden has shared the same sentiment. “If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November.”
In short, the tables will have turned. Whereas anti-abortion activists had to fight against the blanket protection afforded by Roe v. Wade at a national level, chipping away state-by-state to implement greater restrictions, if Roe is overturned, pro-choice advocates will find themselves in the same opposite disadvantaged position, also forced to work state-by-state to enable abortion protections and elect pro-choice leaders.
How might this all unfold?
THE FUTURE
We have seen that abortion in the U.S. is complex and incites feelings of fierce protection or of enraged hostility. Tangled up with a host of other cultural, scientific, and political issues, the debate clearly will not be disappearing any time soon. Initially brought to the forefront by Evangelicals in the late 1970s as a way to shift the focus from their organization’s racist origins, abortion was then successfully leveraged to drum up outrage and funnel members into the Republican party. With abortion as their rallying cry, these recruits have led Republicans to victory over and over again. This proves abortion’s effectiveness as a political tool and guarantees that conservative Republican leaders’ will continue to oppose the practice in order to mollify this voting base.
Even if, like Reagan and Trump, doing so means directly contradicting their previous position on the issue and conveniently forgetting that they were once “pro-choice.”
Aside from all the talk on trimesters, viability, when life begins, Supreme Court nominees, past legal rulings, Justice voting records and all the rest, we must not forget that women themselves are at the heart of this debate; they are the ones who actually become pregnant.
If the draft opinion becomes law (and it certainly appears that it will), these women will be facing a difficult future. A future where a woman could be forced to carry a dead fetus to term or remain pregnant even if her own life is in danger. Where a child would be forced to give birth to a child who was the result of rape or incest. A future laden with added burdens and legal confusion, where expensive and time-consuming interstate or international travel will be a necessity. A world where strangers can sue a woman or her doctor for practicing an abortion, then claim a $10,000 reward, and where other rights like homosexual and interracial marriage and contraception are suddenly tiptoeing on quicksand…
As mentioned earlier, the only feasible way to enshrine abortion rights in the U.S. is to actively participate in all elections and vote for pro-choice candidates at all levels of government. But this should have been done earlier. The damage caused by the likes of Trump and his appointees to the constitutional protection, once taken for granted, has already been done; the proverbial toothpaste has been squeezed from the tube. This damage is compounded by the fact that this strategy, while the only one available, also takes time.
Time that will exact a heavy toll.
The Roe ruling was handed down in 1973. Between 1972 and 1974, illegal abortion procedures decreased from 130,000 to 17,000, and the number of deaths went from 39 to five. If Roe v. Wade is finally overturned, it stands to reason that we will see a reversal in these statistics, with illegal abortions and deaths rising once again.
How many women will die or be injured while trying to cram the toothpaste back inside the tube?