How to Protect Reproductive Rights
Overturning Roe v. Wade is a major setback, but there's still a way forward.
(Edit 6/2/22: In the 7th paragraph, I stated that Democrats would have a government trifecta if they gained a majority in the Senate. This is not entirely accurate, as that’s also dependent on whether they retain their majority in the House. Since this doesn’t change my conclusion, I’ve simply added this factor into the aforementioned paragraph.)
On May 3rd 2022, a bombshell Politico report revealed that the Supreme Court was thinking of overturning Roe v. Wade, a landmark court decision that’s well-known for holding up women’s right to abortion access. The draft decision that was leaked to Politico argued that Roe v. Wade was unconstitutional and that “It is time to heed the issue of abortion to the people’s elected representatives.”
I have my own thoughts on where to draw the line on abortion, but this post isn’t about that; it’s simply an analysis of what could happen once Roe v. Wade is overturned, and how pro-choice activists should respond. For the purposes of this post, I’m using “woman” as shorthand for anyone with the capacity to get pregnant and give birth, which are the relevant physical characteristics here. I do have thoughts on trans/gender issues, but that’s for a future post.
In a way, I think, that draft decision statement is correct—our elected representatives should have codified legal abortion access into law a long time ago. The Supreme Court’s job is to interpret the Constitution; the fact that abortion rights rested solely on the Constitutional interpretation of a single-digit number of old farts is a travesty to me. Regardless, for the pro-choice movement, this is a major setback, or at least it will be. Roe v. Wade hasn’t technically been overturned yet but given the conservative slant in the current Supreme Court, it’s all but certain.
If Roe v. Wade is overturned, this would make abortion a state-level issue—which means that abortion could be legal or illegal depending on what state you live in. Solidly blue states like California and New York are likely going to protect the legality of abortion there, while red states will consider placing greater restrictions or a wholesale ban on the practice. Thus, the women who will be the most severely impacted because of this will be poorer women who can’t afford to travel to another state to get an abortion. Even women who are more well-off might be discouraged on account of abortion bans such as the one in Texas, which allows citizens to file a lawsuit against other citizens accused of “aiding and abetting” abortions.
All of this is, as stated, a major setback, but let’s keep things in perspective—this is not the worst-case scenario. The worst-case scenario is that a wholesale abortion ban is passed on the federal level. However, the Supreme Court’s draft decision, if it becomes the final decision, would ensure that the abortion issue is left up to the states. This would render a federal abortion ban unconstitutional, since a federal ban entails the federal government interfering in something that’s been designated to the states.
This gives pro-choice activists three priorities in the present—the preservation (and possible expansion) of reproductive rights at the state level; the re-litigation of the constitutionality of abortion in the Supreme Court; and the codification of reproductive rights into federal law.
The path to federal abortion protections isn’t an easy one to tread. Democrats currently have Biden in the Oval Office, but only a slim majority in the House, and the Senate is divided 50/50 between both parties, with Vice President Kamala Harris serving as the tiebreaker and Senator Joe Manchin being a crucial swing vote. This means that Democrats will have to elect, at minimum, eleven pro-choice senators during the 2022 midterms. They will also have to retain their majority in the House, and if possible, strengthen it. If that happens, not only will they have a government trifecta, but they’ll be able to get past the filibuster and ignore Manchin running interference for the Republicans. That said, for that to happen, Democrats will have to suddenly get good at politicking—at least as good as the Republicans are—and hope for the best. It's not impossible, but I don’t think it’s realistic to expect Democrats to achieve this in less than a year.
There’s also the possibility that there will be another Supreme Court case around abortion. This would provide an opportunity for another landmark decision to take Roe’s place, hopefully predicated on a stronger argument—for example, instead of being protected by the 14th Amendment, the right to abortion access could be (and in my opinion, is) protected by the 4th Amendment, which protects the individual citizen’s bodily integrity from unreasonable government interference. That said, this faces the same issue that Roe did—abortion access would be protected solely by how a small group of old farts interpret our Constitution. Plus, this would likely require that the Supreme Court be more liberal in its makeup. In other words, I don’t think abortion activists should rely solely on the Supreme Court to protect reproductive rights—instead, the two goals I just outlined should be pursued in conjunction with each other. But for the present, they shouldn’t be expected to be achieved at least until the next election of a Democratic president after Biden.
This means that, at present, the preservation and expansion of state-level abortion access is probably the most realistic option for pro-choice activists to take, and therefore, their top priority. They will have a much easier time of it in California, New York, and Washington; all they need to do is preserve abortion access in those states. In purple and red states, though, they’ll have their work cut out for them. Not only will they have to put pressure on politicians to expand reproductive rights, but they’ll also have to keep those protections from being rolled back. And they will have to be willing and able to talk to people who are on the fence, if not staunch pro-lifers also. Left-leaning activists, whether it’s deserved or not, have a reputation for talking down on (and even shouting down) people who think differently from them; thus, in engaging with fence-sitters on the abortion issue, pro-choice activists will have to prove that notion wrong, as unfair as that may be.
It's been said that all politics is local. I don’t know if that’s true in all cases, especially given the fact that our world is shrinking while our communities are growing. But in the case of abortion, it’s almost certainly about to become more local, whether pro-choice activists like it or not. But there’s nothing wrong with making a tactical retreat away from the federal arena. In fact, to protect women in red states—especially those women who can’t afford to travel out of state to get an abortion—I think it’s a must. If the abortion arena is going to be taken to the state level, then let’s take it there, and win as many victories as possible on that level. A majority (61%) of American citizens think abortion should be legal in all or most cases; activists can leverage that, especially in swing states where Republicans aren’t so solidly entrenched.
In other words, pro-choice activists shouldn’t be discouraged. It’s easy to think that something like this marks the unequivocal end for reproductive rights, especially given how much more exposed we are to bad news (thanks, social media). But while there may be a setback now, if pro-choice activists play their cards right, they can set the stage for greater, more lasting wins for reproductive rights in the long run. This is how Republicans were able to set up the Supreme Court to overturn Roe v. Wade, after all. If they can do it, pro-choice activists can do it too.