The wholly unsurprising fate of Roe v. Wade
Demonstrators outside the U.S. Supreme Court as justices were hearing arguments in a Mississippi abortion ban case. Photo by Jane Norman/States Newsroom.
Being a woman in this country often feels like an exercise in futility. It’s repeatedly baring your soul and sharing your personal and intimate stories in hopes of proving that you deserve basic rights, only to be slapped in the face with decisions that explicitly negate your own experience. It is exhausting. I am rarely rendered speechless, but I literally do not have the words to explain how exhausting it is.
We are here. We are screaming. And we haven’t gone unnoticed. Most people understand what we’re saying. Most of them agree with us. But none of that matters to the people in charge. They don’t care. They prefer to ignore us. Their goal is our silence, which is how I know the fight will continue. There is no other choice. We will continue to exist, no matter how much you might wish we wouldn’t. But please hear me when I tell you: We are exhausted.
On Monday night, Politico published a draft opinion from the U.S. Supreme Court that would overturn Roe v. Wade, the landmark case that established the constitutional right to abortion. Per the story, five of the court’s six conservative justices — Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — voted in December to overturn the law. The opinion, leaked to journalists by an unnamed source, was labeled a first draft and is not legally binding, which means the justices could ask for revisions or reverse their votes entirely.
But forgive me for assuming they won’t. The leaked decision is the long-awaited culmination of decades of work from right-wing activists that began as a way to court Catholic voters and evolved to an all-out assault on women’s bodily autonomy. Roe guaranteed access to abortion, yes, but it also galvanized legions of anti-choice groups, who began testing the limits of the law almost as soon as it was enacted.
That assault continues over the objections of a majority of Americans, who do not want the U.S. Supreme Court to ban the procedure. Many of those same voters favor restrictions on abortion, including some that the court has previously deemed unconstitutional. This is contradictory and unsurprising. Abortion is complicated and confusing, even when politicians aren’t framing it dishonestly to advance their own agendas.
Here’s the truth about abortions. A quarter of women will have one by the end of their childbearing years. (Put another way, if you personally know four women, you probably know someone who’s had an abortion.) Most of those women are unmarried. They’ve never had an abortion before they needed to get an abortion. They’re already mothers. They don’t make much money. And they’re in their first six weeks of pregnancy.
I furnish these statistics reluctantly. It’s a pathetic attempt to justify the right to abortion by illustrating that the procedure is not solely for promiscuous people who get pregnant because they can’t be bothered to use birth control. Maybe if we do that, the thinking goes, conservatives will understand it better. But doing this ignores the larger point, which is that the right to abortion isn’t predicated on a person’s reason for having one. Abortion is a medical procedure and a personal choice that is none of your business unless you’re the one making the decision.
Anti-abortion politicians don’t care
And it’s a moot point anyway, because anti-abortion politicians do not care. They don’t care how you got pregnant. They don’t care if you were raped by a stranger or by someone in your family. They don’t care if you’re broke or uninsured. They don’t care if having a baby will derail your career goals or your education or your relationship or your life. They don’t care if you don’t want to have a baby. They do not care about you, period.
Nor do they care about your baby. If they did, they’d subsidize your pre- and postnatal care. They’d be in favor of universal childcare, and affordable housing, and financial assistance for healthy food and formula and diapers. They’d advocate for mandated paid family leave. They won’t do any of that. Their chosen moniker is “pro-life,” but it is far more accurate to label them “pro-birth.”
People will decry this characterization as overly harsh. I do not care. I invite those people to present me with facts and statistics to prove me wrong. I will be waiting for this proof for the rest of my life, because it does not exist.
But here are some facts that do exist. Republicans have introduced hundreds of anti-abortion measures over the past decade. In 2021, states enacted a record 108 abortion restrictions. That includes a Texas law that bans abortion after six weeks of pregnancy and relies on citizens to file lawsuits against anyone who receives or helps someone access an abortion. Anyone who’s successful is eligible for a $10,000 cash judgment.
So far this year, lawmakers in 42 states have introduced 532 restrictions on abortion. Thirty-three of those proposals have been enacted, including a ban on the procedure after 15 weeks of pregnancy in Florida and a law in Oklahoma that subjects doctors to felony charges for performing abortions for any reason other than a medical emergency. Neither policy allows exceptions for victims of rape or incest.
These are only the newest restrictions. Should Roe fall, 26 states are likely to ban abortion entirely. Thirteen states will do so automatically via “trigger” laws that take effect if the U.S. Supreme Court overturns the law; an additional five have pre-Roe bans that would once again become enforceable following that decision.
Unless Congress codifies abortion rights (it won’t), there’s no way to block the state-level policies if the draft decision stands. President Joe Biden admitted as much, saying Tuesday that it will fall to “our nation’s elected officials at all levels of government to protect a woman’s right to choose” if Roe is overturned.
“And it will fall on voters to elect pro-choice officials this November,” he said in a statement. “At the federal level, we will need more pro-choice senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”
What this means is that your ability to make your own choices about your own body would depend entirely on where you live. You’ll generally have an easier time accessing abortion in blue states than in red ones. For example, abortion would be essentially outlawed in ruby-red Texas under the court’s draft decision, but the procedure would remain legal under state statute in Democratic-controlled Nevada and Colorado. Those states are hundreds of miles apart, but in a post-Roe reality, they may as well be different worlds.
The decision places new importance on upcoming elections in battleground states like Pennsylvania, where abortion access may hinge on the outcome of the gubernatorial race, and Michigan, where it could depend on who becomes attorney general. It once again leaves women and minorities twisting in the wind, waiting on tenterhooks for details of the latest policy to disproportionately affect them. And it underscores the necessity of voting — not just for president, not just every four years, but consistently, even when you might prefer a different candidate, even when the front-runner used a private server for some of her emails, I mean can you even?
Why we’re here
As they say, elections have consequences. We’re here because of Donald Trump, a one-term president who damaged democracy but still got to appoint three justices to the U.S. Supreme Court. We’re here because of U.S. Sen. Mitch McConnell (R-Ky.), who hijacked a vacant court seat in President Barack Obama’s last term but declined to follow his own precedent when another seat came open in the final months of Trump’s one-term presidency.
We’re here because of Justice Clarence Thomas, who remains an active member of the high court despite his marriage to a woman who helped coordinate attempts to overthrow the 2020 election. We’re here because of U.S. Sen. Susan Collins (Maine), a pro-choice Republican who voted to confirm Kavanaugh and Gorsuch because they promised her they considered Roe a settled matter.
“If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office,” Collins said Tuesday in a statement after a feather knocked her right over! “Obviously, we won’t know each Justice’s decision and reasoning until the Supreme Court officially announces its opinion in this case.”
But mostly, we’re here because of the Republican Party, or more specifically because of its hypocrisy. Republicans are the party of “small government” and “family values,” except when it comes to the decisions a woman makes about her own family and her own body. Republicans are positive that laws are ineffective at banning guns but believe those same laws will prevent abortion. They’re “pro-life,” except when it comes to caring about or listening to actual living women. (Informed of the draft decision, Republicans didn’t scramble to release policies addressing the gaps in prenatal care and family leave. But they did decry the leak.)
In reality, Republicans are loyal only to power. They’ll take as much as we allow. You may shrug and think abortion doesn’t affect you, but abortion is only the beginning. Eventually, someday, they may come for your autonomy, too. Can’t imagine that world? Must be nice. Personally, I can’t relate.
This column was originally published in the Evening Wrap, the States Newsroom’s national newsletter, which you can subscribe to here.
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