NEWSLETTER March 2024
Is Roe the floor—or the ceiling?
In June 2022, people living in the United States lost their federally guaranteed abortion right when the Supreme Court decided Dobbs v. Jackson Women’s Health Organization. Dobbs overturned the 49-year-old precedent set in Roe v Wade in 1973, leaving individual U.S. states to rule on the matter. So far, Republican lawmakers in close to 18 U.S. states (and counting) have eagerly criminalized abortion in whole or in part, with dire consequences for abortion services, and for reproductive health and pregnancy care more broadly.
President Joe Biden, after decades of saying he personally opposes abortion, has realized, along with the rest of the Democratic Party establishment, that their young and female voters are very angry about losing the right to control their body and fertility. On the campaign trail for a second term, Biden has thus promised to “restore Roe,” that is, to return the U.S. to the day before Dobbs. But is that what we should be aiming for? Is Roe the best we can do, or should we aim for something different?
Keep in mind that, to codify Roe into federal law, Democrats would need to retake the House, keep the Senate, do away with the filibuster rule that requires 60 votes for any law to pass the Senate and, of course, keep the White House. So, what should be the upshot? Once Democrats have achieved that, shouldn’t they pass something truly ambitious on abortion and other reproductive and sexual rights? Many activists have been calling for a reconsideration of Roe, and I’m here for it!
Let’s first take stock of where we were before Dobbs came down. When Justice Harold Blackmun wrote the 7-2 majority opinion in Roe v Wade in 1973, he divided pregnancy into three trimesters, with allowable state intervention ratcheting up as gestation moved forward. During the first trimester, given the safety of abortion as compared to pregnancy, medical providers were free to do as they saw fit. In that respect, it’s striking to note that Blackmun, a former Mayo Clinic general counsel, wrote Roe largely from the perspective of the medical profession rather than from the point of view of pregnant women. “The [Roe] decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.”
As renowned Court observer, journalist and legal scholar Linda Greenhouse wrote in her 2005 book Becoming Justice Blackmun, this was perhaps not surprising since U.S. criminal abortion laws then and now target doctors, not pregnant women. Moreover, “the briefs filed with the Court from many corners of the medical establishment portrayed existing abortion laws as a threat to women’s safety” rather than an attack on their liberty. Realizing that made me that much more enclined to agree with Justice Ruth Bader Ginsberg, whose critique of Roe was that it didn't hinge on women's equality.
Justice Blackmun “le[ft] the State free to place increasing restrictions on abortion as the period of pregnancy lengthen[ed], so long as those restrictions [we]re tailored to recognized state interests.” And what were these “important state interests” that provided “compelling justifications for intervention”? After the first trimester of pregnancy, “the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.” [my emphasis] Examples of permissible state regulation from the second trimester onwards listed by Justice Blackmun included “requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.” Sensible and non-controversial, as long as these regulations are adopted in good faith and are the least intrusive measures to safeguard maternal health. A big ‘if,” it turned out.
But Justice Blackmun abandoned his medically centered, evidence-based framework after that. Morality and religious beliefs intruded as he grappled with the question of fetal life. Blackmun recognized that the Court “need[ed] not resolve the difficult question of when life begins,” but he nevertheless drew a line at viability of the fetus outside the womb, roughly 28 weeks of gestation in 1973, as the time when the state could ban abortion. Blackmun acknowledged privately to the other justices that his choice felt arbitrary, but he went ahead anyway, writing that “…if the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.” [my emphasis] Rather than affirming pregnant persons’ full right to control their body and make their own decisions in often complex situations, Justice Blackmun downgraded these rights to affirm a nebulous state interest in protecting fetuses. This portrayed pregnant women as dangerous to fetuses, and later abortions as suspicious and nefarious.
In 1992, the Court revisited Roe in Planned Parenthood v. Casey, and many feared the worst. A last-minute shift by Justice Anthony Kennedy left the right to abortion in place (5-4) but removed the complete freedom from restrictions that pregnant persons and doctors had enjoyed in the first trimester of pregnancy, and lowered the standard used to evaluate whether an abortion restriction was an undue burden. Restrictions such as 24-hour waiting periods, counseling designed to dissuade women from having an abortion, or parental consent requirements were now considered permissible. But (hurray!) spousal consent was deemed unconstitutional. Viability was maintained as the bright line after which banning abortion was acceptable, as long as exceptions for the life and health of the woman remained available. Justice Blackmun, who was still on the Court, would have kept “strict scrutiny” in place and declared all these restrictions invalid. He retired two years later, by then the most liberal justice on a court that had undeniably moved rightward.
as they awaited the ruling on Pennsylvania’s restrictive abortion laws in Planned Parenthood v Casey.
Credit: Marcy Nighswander/Associated Press
Clearly, the Roe-Casey regime provided important assurances for health personnel and patients. This was true even in “deep red” states such as Mississippi or Alabama, where social and religious conservatives have a firm grip on state politics. But it still presented many problems.
Using viability as their guidepost, many states that reformed their abortion laws around the time of Roe banned abortion somewhere after 22 to 26 weeks, the period of gestation where fetal viability is plausible. This forced many pregnant persons to travel to the few states that did not set such a gestational limit and where medical personnel were free to provide timely, quality care without having to wait until their patient became ill enough to “deserve” such care—Colorado and Oregon, notably.
Since Dobbs, it’s become horrifyingly obvious how medically unhelpful viability is to determine whether a pregnant person should have an abortion. Major complications of pregnancy arising after viability are often life-threatening. Under restrictive laws, we have seen doctors in states like Texas or Oklahoma wait until pregnant persons suffer grave health consequences, sometimes teetering on the brink of death, before they intervene. Those who can travel out-of-state to obtain an abortion in humane conditions do so. The rest have no choice but to wait and hope that they will make it out alive, with their health and fertility intact. And yet, we can’t seem to overcome “viability.”
Religious right-wing attacks against abortion began soon after Roe was issued, and they have never let up. A range of strategies have been used. From 1973 on, a number of U.S. states began passing laws to make abortion access more difficult and onerous and to drive abortion providers out of business. TRAP (Targeted Regulation of Abortion Providers) laws were a tool of choice: costly, medically unnecessary requirements adopted by anti-abortion lawmakers under the pretext of protecting women’s health. Examples included requiring that abortion providers have admitting privileges at nearby hospitals (even though abortions are very safe, and it is exceedingly rare that a patient will need to be hospitalized) or demanding that abortion clinics meet building codes suitable for hospitals. Dozens of these bills were adopted into law in Republican-run states. Until Casey, these laws were usually judged unconstitutional. After Casey, a number of them passed muster.
Roe didn’t guarantee affordability of abortion care, so attacks on funding of abortion were another obvious and early line of attack. The 1976 Hyde Amendment prohibited federal Medicaid funding of abortion, and a number of states followed suit, banning the use of their own state Medicaid funds to pay for abortions. Today, 19 states that do not ban abortion nevertheless refuse to allow state funds to pay for abortions. This effectively obstructs timely access to abortion for anyone who cannot come up with the money—such as teenagers and persons with low income, many of whom are women of color or migrants—pushing their pregnancies into later stages.
In 2003, the Republican-controlled U.S. Congress joined the anti-abortion fray and adopted the so-called Partial-Birth Abortion Ban Act, a law that claims to prohibit a form of surgical abortion used in the second trimester without actually defining the exact procedure nor specifying any actual gestational period—an obvious attempt to scare away and further stigmatize providers of later abortions. In 2007, in Gonzales v Carhart, the Supreme Court found this appallingly vague law to be constitutional.
Soon after Roe, anti-abortion forces also began resorting to sickening violence. The first recorded clinic arson of the post-Roe era dates back to 1976. Forty-two clinic bombings and numerous arsons have taken place since then. Eleven people (including four doctors and two clinic staff) have been murdered, and 26 more have survived murder attempts. Between 1977 and 2015, 7,200 acts of violence were committed by anti-abortion extremists, including death threats and assaults, as well as 234,000 other acts of disruption, including hate mail and harassing calls. During the Trump era, clinic invasions, trespassing and obstruction reached an all-time high, and online hate speech against providers skyrocketed. Protecting staff and patients from violence and harassment became a constant worry for clinic operators. In 1994, Congress enacted the Freedom of Access to Clinic Entrances Act (“FACE”), which prohibits violent, threatening, damaging and obstructive conduct intended to injure, intimidate, or interfere with the right to seek, obtain or provide reproductive health services. Meanwhile, only 16 U.S. states (progressive ones) and the District of Columbia passed laws to curtail harassment of patients, most notably via buffer zones. Imagine being an abortion provider in Mississippi or Alabama in those years.
was issued by the Supreme Court
Credit: Washington Post
The pre-Dobbs era was hardly idyllic, although certainly less harrowing than today. For many pregnant persons, access to care was already significantly curtailed. For example, in Missouri in 2021, only 100 abortions were performed. Under the state restrictions allowed under Roe-Casey, such as 72-hour waiting periods, most Missouri residents already traveled out of state for care. Should we just return to that state of affairs? Should women like Erika Christensen of New York State, who learned at 30 weeks of pregnancy that her fetus would not be able to breathe, just accept that they have to fly to Colorado to obtain an abortion (as she did)? Should all the patients who could not count on Medicaid to help them pay for abortion just accept they will be left behind?
Signe Espinoza, the executive director of Planned Parenthood of Pennsylvania, recently wrote in an op-ed in the Pennsylvania Capital-Star that she was letting go of nostalgia for Roe: “Yes, Roe prohibited outright bans on abortion – but there were more abortion clinics in Pennsylvania before Roe was decided” than there are today (fewer than twenty, most of them in urban and densely populated suburban areas). The right-wing onslaught had taken its toll on abortion access, and Roe hadn't been enough to stop it.
It’s been argued that the failures of progressive lawmakers and activists to fiercely defend abortion and ensure everyone who needed abortion care got it are at the root of our current predicament. Certain U.S. states were deemed hopeless, procedures later in pregnancy were stigmatized, public funding of abortion was seen as expendable, abortion needed to be “rare” and should certainly not rock the boat of presidential election campaigns. Meanwhile, the anti-abortion movement persisted and never wavered.
At the federal level in the U.S., the Woman’s Health Protection Act is being proposed to restore abortion rights. It has been introduced by Democrats regularly since 2013. It was passed by the House in 2021, but defeated twice in the Senate in 2022. The WHPA would explicitly do away with all state restrictions on abortion before viability and would forbid anyone from requiring that pregnant persons explain why they want an abortion. But, after fetal viability, all kinds of restrictions would be allowed, although states couldn’t restrict abortion when necessary to protect a patient’s life and health. However, we know that these kinds of life and health exemptions don’t work to guarantee care, as evidenced by the harrowing stories of Texans Kate Cox and Amanda Zurawski, so why put so much stock in them? And the WHPA would not do away with the Hyde Amendment nor the Partial-Birth Abortion Ban Act. It would not improve clinic security. Sigh. I have spoken in support of it in the past, and I thought that it was, in those pre-Dobbs times, the best we could hope for. But I now think that we have to be much bolder.
In restrictive states, ballot measures or referenda can be used to lift restrictions, and these pro-abortion measures have proven very popular with voters. But a number of them replicated the Roe-Casey viability framework, notably the Kansas, Michigan and Ohio measures. The 2024 ballot measure put forward by the Democratic Party in Missouri would also maintain the viability framework, as would the Florida ballot initiative. Activists in Missouri report they feel the need to act urgently because Republicans in the state are trying to make it harder to even present a ballot measure. Whether that requires making this kind of compromise isn’t clear. A fascinating article published in 2023 in The Nation reports that, when voters are asked to weigh in on two ballot measures supporting the right to abortion, one allowing restrictions after viability and one not mentioning viability at all, voters preferred the measure that didn’t restrict abortion at all by 15 points. It seems that after Dobbs, “There’s a large portion of voters that don’t want any state involvement in any decisions related to abortion, including after viability,” concluded pollster Duncan Gans of PerryUndem, who tested the measures with 4,000 voters with a focus on Arizona.
I’m heartened by the fact that some states are reaching higher. Vermont has enshrined in its state Constitution a broad right to reproductive freedom without limit, after 77 percent of voters supported it in November 2022. In Colorado, where abortion isn’t restricted based on gestational age, activists are going further by pursuing an amendment to overturn the state’s ban on Medicaid funding of abortion. It’s also fabulous to know that the American College of Obstetricians and Gynecologists, ACOG, which brings together more than 60,000 members and issues guidelines that form the standard of care for the profession, revised its policies in 2022 to clarify that it “strongly opposes any effort that impedes access to abortion care and interferes in the relationship between a person and their healthcare professional.” No restrictions, period! Just healthcare, freedom and justice.
In closing, I’m thinking about Canada, where abortion isn’t mentioned at all in the Criminal Code (criminal law is a federal matter, unlike in the U.S.), where there is no gestational limit for care, and where national health insurance covers the procedure. It is possible to imagine a different world.
In solidarity with all those fighting for the vision of abortion justice we need and deserve,
FG