What’s Happening with Abortion laws in America?

Every year, March 1st marks the beginning of Women’s History Month in the United States. A national celebration that began in 1981 as “Women’s History Week” and evolved to “Women’s History Month” by 1987, it’s a time designated for celebrating the contributions women have made to the United States throughout American history. Every year, we use this month-long celebration to observe the accomplishments of women and uplift the trailblazers who are leading the way for change. It’s also when we consider where women stand in American society today, reflect on the progress that’s been made over time, and underscore the progress that continues to be needed. In other words, it’s a time not just to celebrate, but to amplify the conversations around women’s rights. This year, with everything that’s going on with abortion laws, we thought it was the perfect topic for kicking off Women’s History Month 2022.

Before Roe v. Wade

We’ve all heard of the 1973 landmark legal case of Roe v. Wade, which ruled that restrictive state regulation of abortion was unconstitutional. The majority ruling held that a set of Texas statutes criminalizing abortion in most instances violated a woman’s constitutional right of privacy, which it found to be implicit in the liberty guarantee of the due process clause of the Fourteenth Amendment. This ruling was a huge win for people seeking abortions who, before Roe v. Wade, were forced to find clandestine clinics and sometimes travel hundreds of miles for risky procedures that they learned about through word of mouth. And this was if they were fortunate enough to afford the usually exorbitantly priced procedures. Inherent in getting a clandestine abortion was the abiding concern that the person performing the procedure might be a charlatan preying on the vulnerable or that the procedure would not work. And, of course, that it could result in medical complications or even death. 

The bottom line? Not having a right to legal abortions did not prevent abortions from happening. It merely forced the procedures to go underground, unduly burdening pregnant people, and putting their health and safety at risk.

The Texas Heartbeat Act

Why is this especially relevant today? Because while Roe v. Wade and abortions rights have always been a hotly debated topic, nationwide, legal access to abortion is at a very real risk of being a thing of the past and it all started with an abortion ban in Texas.

In September 2021, the Texas Heartbeat Act was commenced, banning abortion after about six weeks of pregnancy, asserting that this is the point at which fetal cardiac activity can be detected. Since many people do not yet realize they are pregnant at this point, the ban — which makes no exception for cases of rape or incest — imposes an incredibly severe restriction. In one of the most extreme abortion bans this country has ever seen, politicians, neighbors, and even complete strangers can sue anyone who helps a person obtain an abortion in Texas after six weeks. The chilling ban has forced Texans to travel out of state to get abortions and scramble to get abortion pills. It’s also paved the way for other states to mimic the Texas ban with similar bills that sidestep the Constitution. On December 10, 2021, the ban was upheld by the Supreme Court.

Supreme Court Justice Stephen A. Higginson, a nominee of President Obama, has said of the Texas ban that his colleagues were second-guessing the Supreme Court and allowing Texas officials to re-litigate an issue they had already lost. In the dissenting opinion, he argued “This further, second-guessing redundancy, without time limit, deepens my concern that justice delayed is justice denied, here impeding relief ordered by the Supreme Court.” The Supreme Court is separately considering a Mississippi law that bans most abortions after 15 weeks. The court’s conservative justices signaled at oral argument that they were open to overturning Roe, the nearly 50-year old decision.

Challenging 50 years of precedent

The Mississippi case, known as Dobbs v. Jackson Women’s Health Organization, will specifically address whether a state can ban abortion before viability, generally considered to be around 24–26 weeks of pregnancy. (For the unversed, the plaintiff, Jackson Women’s Health Organization, is the last remaining abortion clinic in Mississippi). The state of Mississippi has gone even further and asked the Court to overturn Roe v. Wade outright— and wipe out almost 50 years of established precedent. The case marks the first time the Supreme Court will consider a pre-viability abortion ban since the Roe v. Wade decision in 1973.

A ruling on the case is expected by summer 2022. 

If Roe v. Wade is overturned

If Roe were to be overturned, the legality of abortion would be up to each state. Twenty-six states are expected to ban or restrict access to abortion if Roe v. Wade is overturned. Twelve states have “trigger laws,” or bans that have been designed to automatically take effect if Roe were to be overturned. Eight states have unenforceable pre-Roe v. Wade bans in place that could go back into effect. Nine states have restrictions that are currently deemed unconstitutional but could go into effect without the protections from Roe. Eleven states have 6-week bans that are currently not in effect, and one state — Texas —as we know, currently has a 6-week ban in effect.

If Roe v. Wade is undone, almost half the states would enact new restrictive laws or seek to enforce laws currently considered unconstitutional. States would then be divided into abortion deserts, where it would be illegal to access care, and abortion havens where care would be available. Millions of people living in abortion deserts, mainly in the South and Midwest, would be forced to travel to receive legal care, which would result in man

The Right to Decide

The Turnaway Study found that people who were denied an abortion had a nearly four times greater chance of being below the federal poverty level. This burden largely falls on Black and Latino communities, who — due to redlining and systematic racism in housing practices — are disproportionately living in low-income communities and more likely to face greater barriers to accessing healthcare. Overall, those who are already marginalized are disproportionately affected as they have no means to seek safe and legal services or access private care. They include women and girls on a low income, refugees and migrants, adolescents, lesbian, bisexual cisgender women and girls, transgender or gender non-conforming individuals, minority or Indigenous women.

Compared with those who were able to receive an abortion, those who were denied care were more likely to stay in contact with a violent partner and ultimately raise the child alone. 

Is birth control next?

Texas recently made it a felony to have a medical abortion via a pill after 7 weeks, and the escalating attack on abortion rights has opened up the conversation around birth control. If Roe is overturned, will it open the gateway to restricting access to birth control as well? If the door is opened to controlling one of the most crucial decisions over the care of one’s body (whether or not to continue a pregnancy), then it begs the question: where will the new line on autonomy for women be drawn? 

Criminalizing Abortion is Discrimination

The committee for the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, or the Treaty for the Rights of Women), has consistently stated that restrictive abortion laws constitute discrimination against women. Secondly, the stigma around abortion and gender stereotyping is closely linked to the criminalization of abortion and other restrictive abortion laws and policies. The mere perception that abortion is unlawful or immoral leads to the stigmatization of women and girls, and consequently, women and girls seeking abortion risk discrimination and harassment. Some women have reported being abused and shamed by health care providers when seeking abortion services or post-abortion care.

A matter of Human Rights

Access to safe abortion services is a human right. Under international human rights law, decisions about your body are yours alone – known as bodily autonomy. Forcing someone to carry on an unwanted pregnancy, or forcing them to seek out an unsafe abortion, is a violation of their human rights, including the rights to privacy and bodily autonomy. Access to abortion is therefore fundamentally linked to protecting and upholding the human rights of women, girls and others who can become pregnant, and thus for achieving social and gender justice.

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