By Eliza Holmes and Skylar Wilkins
Art by Shena Han
Recently, the media has extensively discussed anti-abortion legislation being introduced or passed in several states and how this could lead to the possible overturning of Roe v. Wade. While hearing all of this discourse on the status of reproductive rights in the United States can become a bit overwhelming, we are here to help you get a clearer understanding of what is truly at stake.
History of Roe v. Wade and Planned Parenthood v. Casey:
Roe v. Wade was a monumental case in 1973 concerning abortion laws in the state of Texas. The outcome of this case affected the right to abortion for people across the nation. The plaintiff went by Jane Roe, which was a pseudonym used to protect her identity. She challenged a Texas law that made all abortions illegal except when a doctor claimed it necessary in order to save a woman’s life, stating that this was unconstitutional and violated her right to privacy. In a 7-2 vote, the Supreme Court determined that the Texas law violated the “right to privacy” guaranteed by the Fourteenth Amendment.
Because abortion falls within the “right to privacy” and the Fourteenth Amendment protects against state action that undermines this right, the Supreme Court outlined how all states may regard abortions. This ruling determines that states cannot regulate abortion decision during the first trimester of pregnancy. During the second trimester, states may mandate regulations on abortion only in regards to the health of the pregnant person. Once a fetus reaches the point of “viability” in the third trimester, states may regulate or ban abortions entirely, but only if such laws allow exceptions in cases where an abortion is necessary to save the life of the pregnant person.[1] Fetal viability, as defined in Roe v. Wade, is the point at which the fetus is able to live outside of the womb, typically considered to be around 23 or 24 weeks.[2]
Decades later in 1998 and 1999, the Pennsylvania legislature decided to change its laws surrounding abortion, making it more difficult for many to receive abortions. The new laws included the requirement of minors to seek consent of one parent and wives to seek the consent of their husbands before getting abortions. In the case seeking to end these new provisions, Planned Parenthood v. Casey, the question at hand was whether or not these new provisions violated the rights to abortion as outlined by Roe v. Wade. In a five to four vote, the Supreme Court voted to uphold Roe v. Wade, but most of the Pennsylvania provisions still remained. Additionally, the Supreme Court determined a new standard for abortion laws. Instead of a trimester framework, the Supreme Court chose to view abortion laws in terms of a viability framework.[3] Although viability is typically considered to be around 24 weeks, there is no universal consensus. Therefore, the definition of viability varies by state.[4]
What Dobbs is and How the Court Could Rule on it:
Dobbs v. Jackson Women’s Health Organization, known casually as simply Dobbs, is currently before the United States Supreme Court. The case originated from a Mississippi law passed in 2018 that prohibited abortions after 15 weeks of gestation with minimal exceptions. The question that the Court is tasked with answering is a direct challenge to the constitutionality of the law — that is, is it constitutional to ban all abortions after 15 weeks, rather than before viability?[5] So-called viability is currently the precedent, which comes from Roe v Wade and Planned Parenthood v. Casey.
If the Court rules in favor of Dobbs, they can do so in a few different ways. They can fully overturn Roe, which would subsequently allow states to ban abortion before fetal viability. (This is considered the most extreme option.) They can also allow abortion bans pre-viability, but qualify that statement by saying that it is only allowed when the ban does not cause a significant number of people seeking care to face an undue burden. This seems less extreme at first, and it is, but would quite possibly lead to a full overturn later and have the same end result. Both of these scenarios are functionally saying that the U.S. Constitution does not protect the right to abortion under the 14th amendment, which will cause restricted access to abortion. They could uphold the current precedent set under Roe, but that is looking increasingly less plausible.
Implications if Roe v Wade is Overturned:
If the Supreme Court were to overturn Roe and consider it constitutional to ban abortions without regards to viability, the implications for abortion and contraception access could be major. Trigger laws or amendments exist in twenty-one states that would immediately ban abortions or drastically limit access in some capacity. Over half of states have no protection for abortion rights, and no US territories do. Mary Zeigler, a law professor who focuses on abortions, speculates that an overturning of Roe and subsequent lack of protection for abortion rights could cause some states to attempt to criminalize some forms of contraception by labelling them as abortifacient drugs, rather than contraceptive ones.[6] This is currently just speculation, but it is a feasible scenario to experts in this field. If Roe is overturned, abortion and contraception will become significantly less accessible or even potentially criminalized depending on the state.
The overturning of Roe v. Wade will have disproportionate impacts on low-income communities and people of color. For 41% of Americans of childbearing age, the nearest abortion clinic will close if Roe v. Wade is overturned.[7] The average distance they would have to travel for abortion access would increase by 244 miles, up from a 35-mile average.[8] This means that people who have inflexible job hours or are unable to travel that far would not be able to access abortions, a disproportionate burden on low-income people. People of color are more likely to live in states with restrictive abortion laws and encounter barriers to various reproductive health services.[9] Black and Latinx people experience higher rates of unintended pregnancy than white people do.[10] Because of all this, people of color are both largely experiencing higher rates of unplanned pregnancy and facing more restrictive abortion laws than white people.
Now, more so than ever, it is essential that we advocate for reproductive rights and access to abortion in the nation. Despite all the gains we have made in the past, there is still so much work to be done. In these recent politically polarizing times especially, reproductive rights are under attack, preventing people from getting the necessary care they need. People should not be told what they can do with their bodies. One must have control over their body in order to have control over their life. There are many actions that can be taken to help in this fight: educate yourself on abortion legislation in your own state and country, consider whether the candidates you are supporting back legal and safe abortions, and make your voice heard — inform, protest, show up, speak up, and create change in your communities.
For more information about contraception access and Roe, visit this website: VanSickle-Ward, Rachel, and Kevin Wallsten. “Analysis | If the Supreme Court Undermines Roe v. Wade, Contraception Could Be Banned. This Explains How.” The Washington Post, WP Company, 11 Dec. 2021, https://www.washingtonpost.com/politics/2021/12/11/if-supreme-court-undermines-roe-v-wade-contraception-could-be-banned-this-explains-how/.
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[1] “Roe v. Wade.” Oyez, https://www.oyez.org/cases/1971/70-18.
[2] Cha, Ariana Eunjung, and Rachel Roubein, “Fetal Viability Is at the Center of Mississippi Abortion Case. Here's Why.” The Washington Post, WP Company, January 19, 2022, https://www.washingtonpost.com/health/2021/12/01/what-is-viability/.
[3] “Planned Parenthood of Southeastern Pennsylvania v. Casey.” Oyez, https://www.oyez.org/cases/1991/91-744.
[4] Cha and Roubein, “Mississippi Abortion Case.”
[5] “Dobbs v. Jackson Women's Health Organization.” Oyez, https://www.oyez.org/cases/2021/19-1392.
[6] “Dobbs v. Jackson,” Oyez.
[7]Arman Luczkow, “Expected Overturn of Roe v. Wade Undermines Basic Human Rights,” The Oberlin Review, https://oberlinreview.org/25623/opinions/expected-overturn-of-roe-v-wade-undermines-basic-human-rights/.
[8] Luczkow, “Expected Overturn of Roe v. Wade.”
[9]Jamila Taylor, “Women of Color Will Lose the Most If Roe v. Wade Is Overturned,” Center for American Progress, March 23, 2017, https://www.americanprogress.org/article/women-color-will-lose-roe-v-wade-overturned/.
[10] Taylor, “Women of Color Will Lose the Most.”