Every year, January 22nd marks the anniversary of the landmark Roe v. Wade Supreme Court decision which legalized abortion in the United States. Roe struck down a Texas law banning abortion, finding that a woman’s right to abortion was implicit in the right to privacy protected by the 14th Amendment to the Constitution. The decision made abortion legal after being outlawed in most of the nation since the late 19th century. It changed life for women forever.
Roe v. Wade Protects Pregnant Women’s Civil Rights
Although Roe v. Wade has become synonymous with ending pregnancy, Roe actually has a much bigger role in protecting pregnant women’s civil rights more broadly. Without it, any behavior that pregnant people might engage in could be construed as criminal if it poses real or perceived harm to the fetus. That means that anything a person does while pregnant–whether it’s drinking a glass of wine or coffee, getting on a roller coaster or flight, or refusing to wear a seatbelt–could become a crime if authorities deem it a threat to the fetus. Without Roe, the fetus’ legal rights (no matter what stage of development) could take precedence over the pregnant person. This doctrine is the source of the anti-abortion movement’s “personhood” strategy. It endows the unborn with civil rights that take precedence over women’s rights.
National Advocates for Pregnant Women (NAPW) represents women who have been charged with crimes for a range of behaviors while pregnant. NAPW notes that “more than 1200 women across the U.S. have been charged with crimes or taken into government custody for experiencing miscarriage or stillbirth, attempting abortion outside a medical setting, delaying cesarean surgery, having home births, and for being pregnant and engaging in a wide range of actions that are not otherwise criminalized. Roe has been the defense to many of these charges. If the Supreme Court overturns Roe, there will surely be more prosecutions.”
Background: Who are Roe and Wade?
Jane Roe is a pseudonym for plaintiff Norma McCorvey. McCorvey was a 22-year-old, unmarried pregnant Texan woman who wanted to end her pregnancy but was prohibited because abortion was illegal in Texas. Abortion was legal in other states, but McCorvey, like many poor women today, didn’t have the money to travel and pay for abortion in a place where the procedure was legal and available. She filed a lawsuit in 1970 but the case was not finally resolved until 1973, when the Roe decision was issued on appeal from the Supreme Court. McCorvey was not the first plaintiff to challenge a state abortion law in court, but the Roe case was the first to make to the Supreme Court.
Both personally and as a plaintiff, McCorvey is a complicated historical figure, changing her story about the pregnancy and background multiple times and reversing her position on abortion later in life. After years of working in the abortion rights movement, she was baptized by an evangelical minister from Operation Rescue, a leading organization in the anti-abortion movement. She went on to become an anti-abortion leader, condemning abortion after the first trimester and alleging that she had been pressured into becoming a plaintfiff in the Roe case. The trimester framework was created as part of the Roe v. Wade legal decision. McCorvey passed away in 2017. Read more about her history here.
Henry Wade, the defendant in the case, was the Dallas County district attorney. He was an elected offical responsible for enforcing Texas abortion laws in the county where McCorvey lived. He was well-known by the time Roe v. Wade rolled around because of his role in prosecuting Jack Ruby, who killed Lee Harvey Oswald, the assassin of President Kennedy. Wade had unsuccessfully run for Congress as a Democrat in 1956 but lost to conservative Republican Bruce Alger. Wade remained Dallas District Attorney for 30 years.
Americans Support Roe v. Wade
Two years after Roe v. Wade, 54% of the public supported abortion under certain circumstances and another 21% said abortion always should be legal, while 22% of Americans said it should be illegal according to Gallup polling from 1975. In 2018, Gallup pollsters found little change, with 50% percent of Americans supporting abortion under certain conditions, another 29% of respondents supporting abortion in all cases while 18 % of oppose abortion in all cases.
In the Trump era, strong public support for the legal right to abortion continues including increased intensity for abortion supporters. It’s important to keep in mind as we educate the public that public opinion on abortion is complicated and views on the legal right or access to abortion may sometimes contradict how voters personally feel about pregnancy and abortion. Analysis of the polling research demonstrates that a lot depends on how the questions are posed and that there’s widespread misinformation and misconception about the actual procedure. Most voters are firmly opposed to criminal punishment for doctors who provide abortions.
Are Women’s Rights Under Roe Really at Risk?
Rights and access to abortion have faced many dangers over the years, including the persistent chipping away through the courts and legislation and past challenges at the Supreme Court. But the addition of Justice Brett Kavanaugh to the Supreme Court has created new opportunity to gut protections for pregnant women on a larger scale. Anti-abortion supporters have a deliberate plan to pass extreme abortion bans in states with the express purpose of drawing legal appeals that will force the cases to the Supreme Court level. Right now there are over 20 cases on the way to the Supreme Court that could gut abortion rights and access.
Earlier this year, the Supreme Court announced it will hear a case called June Medical Services v. Gee, which resulted from a 2014 Louisiana abortion law that requires doctors to have admitting privileges at a hospital to perform abortions in clinics. The specific statute is another TRAP law (Targeted Restrictions on Abortion Providers) designed to look like safety measures for women but intended to shut down clinics and reduce access to abortion.
If allowed to take effect, the Louisiana law would institute onerous licensing requirements on doctors who perform abortions in the state and the clinics that provide them. The likely outcome of those restrictions would effectively end abortion care in the state, resulting in Louisiana becoming the first state without abortion access.
The Supreme Court previously struck down an identical law in Texas in the 2016 decision Whole Woman’s Health vs. Hellerstedt. In 2017, a federal judge used the precedent set in the Whole Woman’s Health decision to previously rule the Louisiana law unconstitutional. But, in a move clearly intended to put this question before the Supreme Court, the Fifth Circuit Court that heard an appeal that upheld the law despite The Supreme Court precedent. Abortion advocates have appealed to the Supreme Court where two new Justices, Gorsuch and Kavanaugh, both widely considered likely to rule in favor of more abortion restrictions, will hear the case.
How Will Changes to Roe Impact Women and Families?
Roe v. Wade is genuinely facing more risk than we’ve seen in decades. More than 200 members of Congress recently called on the Supreme Court to “reconsider” Roe. That could mean overturning Roe v. Wade entirely, but it could also mean limiting abortion rights in ways that don’t directly undo previous decisions on abortion yet still severely restrict access to abortion especially for poorer women and women of color who are mostly likely to have abortions today.
Whether the Supreme Court overturns the Constitutional protection of the right to have an abortion or only severly limits it, it’s important to note that anti-abortion politicians have been limiting abortion access for years. Even before the changes in the Supreme Court put Roe at risk, anti-abortion advocates and their political champions have succeeded in creating obstacles for many people seeking abortions.
Almost a third of independent abortion providers have closed since 2012 and six states have only a single abortion provider. Twenty percent of people living in the United States are more than forty miles from the nearest doctor providing abortions and some need to drive for more than 300 miles to access care.
Even when a doctor is accessible, people that want an abortion often face economic barriers to getting one because of the many obstacles opponents have created. The federal Hyde Amendment and similar state laws deny anyone who receives their insurance through the government, including individuals on Medicaid or in the military, from using their insurance to pay for an abortion, except in extreme circumstances. The impact of these attacks on abortion accesshave had a disproportionate impact on low-income women, Black, Latina and Native American women, and LGBTQ men and women.
Currently, one in four women in the United States has an abortion in her lifetime; two-thirds of women who have abortions already have children. Research shows that abortion restrictions that force women to stay pregnant against their will have devasting long-term consequences. Women who are denied abortions are four times more likely to lives below the Federal Poverty Level (FPL), three times more likely to be unemployed, and more likely to suffer negative health and mental health consequences than those with access to abortion. The Turnaway study also finds that being denied abortion has serious implications for the children born of unwanted pregnancy, as well as for the existing children in the family.
RESOURCES:
The 46th Anniversary of Roe v. Wade: A Look Back
https://www.politico.com/gallery/2019/01/22/roe-v-wade-anniversary-003075?slide=16
State by State Polling on Abortion View PPRI
https://www.prri.org/research/legal-in-most-cases-the-impact-of-the-abortion-debate-in-2019-america/
US Statistics on Abortion
