For the last 40 years, access to abortion has remained the law of the land through precedent set by the landmark U.S. Supreme Court ruling, Roe v. Wade. It’s a case many of us are familiar with: One that’s inspired books, documentaries, and a generation of activists.
It is also a protection that is inherently flawed.
In the mythos of American civil rights, Roe is a pillar of gender equity. In practice, it has allowed for the kind of reproductive freedom that has allowed people who can get pregnant to advance economically and socially in a way that wasn’t accessible before. But in doctrine, Roe is fairly weak as a protector of abortion access and left several gaps that have been targeted and taken advantage of by anti-abortion politicians.
The History of Roe and Supreme Court Cases Regarding Abortion Access
The 7-2 decision made in Roe leaned on our Constitutional right to privacy, established in the 14th Amendment. Roe provides the right to terminate a pregnancy under constitutional protections for individual autonomy and privacy. The Court also determined that the strict scrutiny standard — the highest level of constitutional protection, which requires that all restrictions on abortion be narrowly tailored to serve a compelling state interest — was the appropriate level any laws limiting abortion must pass.
The decision also notes that this right is not absolute, and that other factors like maternal health and prenatal life can play into legal decisions regarding abortion access. This initially led to a standard for legality based on gestational age, grouped by trimester.
When we think of access to abortion in the United States, we often think of Roe as the most defining Supreme Court decision. However, it was the 1992 decision in Planned Parenthood v. Casey that truly defined what kind of legislation states could pass to restrict access.
In this ruling, the Court upheld the right to abortion care, but limited the scope of that right by scrapping the trimester framework set in Roe in favor of a more complicated and less objectively defined framework of fetal viability. The Casey ruling also overruled the requirement of strict scrutiny for any law regarding restrictions to abortion access, replacing it with the “undue burden” standard for determining the constitutionality of government restrictions on abortion. The undue burden standard is a lesser standard of protection for laws restricting abortion than the strict scrutiny standard.
Following Casey, anti-abortion politicans across the U.S. began pushing restrictions through state legislatures that created extreme requirements for physicians who provide abortions. These laws, called Targeted Restrictions of Abortion Providers (TRAP) laws, include restrictions on building construction and size as well as medically unnecessary hospital admitting privilege requirements, which have limited abortion access in several states.
Two Supreme Court cases in the last five years have upheld the constitutional right to abortion, Whole Woman’s Health v. Hellerstedt in 2016 and June Medical Services v. Russo this year. The cases, which are practically identical, ruled that state-level abortion restrictions that would close the majority of health centers providing abortion care in Texas and Louisiana, respectively, were unconstitutional because they failed the undue burden test. Though these cases have been considered some of the biggest wins for abortion access since the initial Roe decision, they also potentially leave a gap based on how future courts could define undue burdens.
If Roe Falls, and Even If It Doesn’t
Many recent conversations about abortion access are starting with the same three words: if Roe falls. With a consistently more and more conservative leaning Supreme Court, and the possibility of a 6-3 majority of anti-abortion justicies within the next month, the fall of Roe seems inevitable to many.
Currently, there are 17 cases that could be heard by the Supreme Court regarding access to abortion, including seven cases within the regions served by Planned Parenthood Great Plains Votes. Two are currently sitting in front of the Court for consideration for upcoming arguments.
Further, even though the national focus is most often on Roe, there are 25 cases about contraception or other aspects of reproductive health care that could be taken up by the court as well.
In Missouri, an omnibus bill could set a number of restrictions that would make it nearly impossible to receive abortion care across the state, including a 6-week ban on abortion services — before many even know they are pregnant. Across the border in Arkansas, a trigger law would automatically ban abortion care if Roe is overturned. These kinds of legislation means that abortion care would be swifly and quickly restricted in the event that Roe is overturned or deeply altered.
As we saw earlier this year in response to the COVID-19 pandemic, these quick and significant legal changes can leave patients in vulnerable positions and cause additional stress and delay to essential and time sensitive care.
So what if Roe falls? What would that look like? It’s hard to say for sure, and even more complicated given the nature of Supreme Court nominee Amy Coney Barrett’s hearings where she’s dodged questions about how she would rule in a case challenging Roe. But even if Roe as a precedent is not entirely overturned, access could be pushed further and further out of reach as anti-abortion politicians find new and destructive ways to restrict abortion care.
We Can’t Count on Courts
The reality is that we can no longer count on the courts to protect the legality of abortion access. Because decisions like Casey and Hellerstedt rely on definitions that can be eroded and attacked, like fetal viability and undue burden, there is a margin of interpretation for circuit and federal courts. According to the Guttmacher Institute, 23 states have laws regulating abortion providers, many of which are medically unnecessary.
In the past four years, we’ve also seen the second-highest number of lifetime appointments to federal courts in any presidential term, all facilitated by an anti-abortion administration and Senate Majority leader. 194 of the 792 federal judicial seats were filled by Trump in the last four years. Only a few people are making decisions on the makeup of our federal courts, and these decisions could impact abortion rights in the United States for decades.
If we can’t count on the courts, we have to shift focus to a place where individual voters have more control: our state legislatures. This spring in Kansas, champions for reproductive rights in Topeka helped stop an amendment that would have removed an enshrined right to bodily autonomy, including access to abortion care, from the state constitution. Even as a minority party in the state house of representatives and state senate, it was possible to protect abortion access by strongly opposing this ballot initiative that would have left Kansans vulnerable to further restrictions on abortion care.
To protect abortion access on a state level, we have to continue electing leaders who will not only vote in line with our rights, but will also be vocal champions for those rights. Introducing and passing proactive legislation, enshrining the right to abortion access in state constitutions, and fighting back against the predictable and stunted logic of anti-abortion legislation are three key things that will help push the line of access back toward the people.