Roe v. Wade at Risk: Nationwide Legal Abortion May Be a Thing of the Past
By Miriam Berg | Jan. 21, 2022, 12:09 p.m.
The 1973 Supreme Court ruling in Roe v. Wade made access to safe and legal abortion a constitutional right. On Roe's 49th anniversary, that freedom is at risk like never before.
Roe v. Wade is the case that legalized abortion in the United States. But ever since the ruling established the right to abortion, it has been under attack. Over the last five decades, even with the constitutional right to abortion in place, politicians have enacted dangerous restrictions that make getting an abortion nearly impossible for many people. Now, we're at a crisis point.
The U.S. Supreme Court has allowed a radical abortion ban, Texas’s Senate Bill 8 (S.B. 8), to stand. It bans abortion at around six weeks of pregnancy — before many people even know they’re pregnant. And it has a "sue thy neighbor" scheme that encourages any person in the state to sue people who help someone get an abortion. Since the Supreme Court allowed S.B. 8 to go into effect on Sept. 1, stories of heartbreak, chaos, and crisis have come out of Texas. People who have the resources are forced to either travel long distances to get an abortion or remain pregnant. The court's failure to stop S.B. 8 also paved the way for other states to mimic Texas with similar bills that sidestep the Constitution.
And by the summer, the Supreme Court will rule in a case that directly challenges Roe v. Wade.
This new reality for abortion access is scary. But we’re not backing down. We're doing everything we can to keep abortion safe, legal, and accessible for all people.
Read on to learn what’s at stake right now. See our backgrounder for details on the Roe v. Wade decision itself.
Half of people who can become pregnant in America live in states that could quickly move to ban abortion if the Supreme Court overturns Roe v. Wade.
This Is Not a Drill: Abortion Access Is Being Dismantled
In Dobbs v. Jackson Women’s Health Organization, the state of Mississippi has asked the Supreme Court to uphold its unconstitutional abortion ban at 15 weeks of pregnancy and outright overule Roe v. Wade. By agreeing to hear this case in the first place — about a ban that violates nearly 50 years of precedent and hear — the nation’s highest court has made it clear that our constitutional right to abortion is at greater risk than ever before and our days of legal and accessible abortion across the country may be numbered.
The Supreme Court has never been so close to upholding a ban that so blatantly ignores the precedent set in Roe v. Wade. What changed? The makeup of the Supreme Court. Three new Supreme Court justices — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — have records hostile to reproductive health and rights. And three other justices on the court have previously ruled against abortion access. They make up a total of six out of nine justices.
Through decisions in key abortion rights cases, including Planned Parenthood of Southeastern Pennsylvania v. Casey and Whole Woman’s Health v. Hellerstedt, the Supreme Court honored Roe v. Wade’s core principle: that the Constitution protects a person's right to make their own private medical decisions, including the decision to have an abortion prior to fetal viability. But in December 2021, the Supreme Court’s response to the oral arguments in Dobbs v. Jackson Women’s Health Organization, made it seem possible that a majority of justices may erase nearly 50 years of precedent and overturn Roe v. Wade.
The court’s decision is expected by the end of June 2022.
Abortion is health care. Before Roe v. Wade, illegal abortions caused at least 1 in 6 pregnancy-related deaths.
What Happens If Roe v. Wade Is Overturned
The Supreme Court's decision in Dobbs v. Jackson Women’s Health Organization could result in over half the states in the country moving to wipe out abortion access. That would disproportionately harm people who already face systemic discrimination and have limited health care access.
- If Roe v. Wade is overturned, 26 states could quickly move to ban abortion. Some of these states have policies that could ban abortion immediately. Others are led by lawmakers who are hostile to abortion and have a history of passing abortion restrictions.
- 36 million women, plus many others who can become pregnant, are at risk of losing abortion access in their state. This includes 5.7 million Hispanic or Latino people; 5.3 million Black people; 1.1 million Asian people; and about 340,000 American Indian or Alaska Native people.
Abortion Access Before and After Roe v. Wade
Abortion, like birth control, has ancient roots in cultures all over the world. But in the late 1800s and early 1900s, almost every state in America made abortion illegal.
It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.
— Opinion of the Court in Roe v. Wade, by Justice Harry Blackmun (Jan. 22, 1973)
Before Roe v. Wade: Fatal Consequences of Criminalizing Abortion
Prohibiting abortion sent providers and patients into the shadows. By 1965, illegal abortions made up one-sixth of all pregnancy-related deaths in the United States — and that’s just according to official reports. Doctors think the actual number of deaths from illegal abortion was a lot higher.
Attempts to prohibit abortion particularly hurt people with low incomes: A survey conducted in the 1960s found that among women with low incomes in New York City who had an abortion, eight in 10 attempted a dangerous, self-induced procedure.
After Roe v. Wade: Safe Abortion Access
The Supreme Court’s Roe v. Wade ruling on January 22, 1973, not only gave people the right to access abortion legally all across the country — it also prevented many deaths from unsafe, illegal abortions
This right of privacy… is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care… All these are factors the woman and her responsible physician necessarily will consider in consultation.— Opinion of the Court in Roe v. Wade, by Justice Harry Blackmun (Jan. 22, 1973)
When people can legally access abortion, it’s one of the safest medical procedures. In the United States, abortion has a safety record of over 99%. Protecting the right to abortion is crucial to protecting people’s access to safe abortions.
[T]he "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights… Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment… That right [to be free from unwarranted governmental intrusion] necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.— Concurring Opinion in Roe v. Wade, by Justice Potter Stewart (Jan. 22, 1973)
Abortion in America Today
Abortion is common and accepted — and the data proves it.
- Nearly 1 in 4 women in America will have an abortion by age 45.
- 80% of people in America want abortion to be legal.
- Regardless of age, background, or educational level, the majority of people support Roe v. Wade.
- Acceptance of abortion is long-standing: A majority of Americans have wanted abortion to be legal for decades.
Beyond the numbers, personal stories show that abortion is an essential health care service — no matter the reason.
A Right for All — Access for Few
Legalizing abortion didn’t allow everyone the same privilege to get an abortion. Abortion has been a right in name only for many people. That’s particularly true of communities facing systemic barriers to health care — such as Black, Latino, and Indigenous communities; people in rural communities; immigrants; people with disabilities; LGBTQ+ people; and people struggling to make ends meet.
Due to systemic racism, ongoing white supremacy, and coercive reproductive policies, your access to abortion largely depends on your race — as well as how much money you have, your health insurance status, and your ZIP code.
State Abortion Laws
Despite Americans' consistent support for Roe v. Wade, state legislators have increasingly attacked abortion access through ballot measures and legislative restrictions. Their attacks escalated in recent years.
- In 2021, states introduced 663 abortion restrictions and enacted 108 of them — a record number in any year since 1973.
- From 1973 to 2021, states enacted 1,336 abortion restrictions — 44% in the last decade.
These laws seek to shame, pressure, punish, and block people who want to have an abortion. Many of these laws blatantly flout Roe v. Wade. That includes the six-week abortion ban in Texas and the 15-week abortion ban in Mississippi.
Dozens more bills that block abortion access are winding their way through state legislatures. But that’s not the end of the story. Reproductive rights champions in states across the country are taking proactive measures to not only protect but expand access to abortion, no matter what the Supreme Court decides this year.
Federal Abortion Policies
In the nearly 50 years since the Roe v. Wade ruling, Congress has taken two major steps backward on abortion access:
- The Hyde Amendment is a discriminatory law passed every year since1976 that blocks federal health programs like Medicaid from covering abortion. That put abortion out of reach for many people who use Medicaid — with exceptions only for instances of rape, incest, or when continuing a pregnancy could kill the patient.
- A 2003 abortion ban that criminalizes certain safe abortion procedures in the second trimester of pregnancy took effectin 2007 after it was upheld by the Supreme Court.
Congress must take proactive measures to protect and expand abortion access, and lawmakers at all levels of government must ensure everyone can make their own health care decisions.
Not Backing Down
No matter where you live or how much money you make, you deserve access to health care without barriers or political interference.
Planned Parenthood health centers are preparing for a future when more patients may be forced to travel out of state to access abortion if necessary. At the same time, Planned Parenthood supporters and abortion rights advocates are doubling down — fighting for a future where everyone has the freedom and power to make their own decisions about their bodies and their lives.
Join the fight. There’s no time to waste.
Tags: SCOTUS, Prochoice, "supreme court, "roe v wade, "dobbs v jackson women's health organization, prolife