Mark Humphrey/AP Photo
People wait for a Tennessee state Senate hearing to begin to discuss a fetal heartbeat abortion ban, in Nashville, Tennessee, August 12, 2019.
Despite years of mounting legal restrictions in state legislatures, the constitutional threat to abortion has never been at a higher pitch. Earlier this week, the Supreme Court announced its decision to hear a case on a Mississippi abortion law that bans abortions after 15 weeks—contradicting the constitutional statute that protects abortions before the 24-week mark of fetal viability. This will be the first abortion case the Supreme Court will hear that directly challenges Roe v. Wade.
The Mississippi case follows years of state legislatures moving at a rapid clip to restrict abortions and repeal reproductive-health access. In this year’s session alone, over 500 anti-abortion bills have been proposed in state legislatures, with 70 of them being enacted so far. The flood of legislation has been intentionally provocative, inviting legal challenges that would eventually move the issue onto the Supreme Court’s calendar. Legal experts say that Trump’s appointments of federal judges on lower courts created an ecosystem ripe for repealing reproductive rights, as did the three Supreme Court justices he appointed.
With a Republican-leaning 6-3 majority, the chance of the Supreme Court ruling in Mississippi’s favor is likely. Justices Brett Kavanaugh and Amy Coney Barrett are at the forefront of this legal battle, with both deflecting interrogations during the nomination proceedings about their stance on abortion. (Barrett was at one time affiliated with the Indiana chapter of Right to Life.)
“The repression is real,” says Lizz Winstead, the founder of Abortion Access Front. “People really need to understand that what’s about to happen is damn scary.”
Reproductive-rights experts say that there is no way in which the Supreme Court can uphold the Mississippi law and not overturn Roe entirely. The 15-week limitation on abortions directly challenges the core holding of the precedent established by Roe in 1973, and it is the first pre–fetal viability case the Court has heard since then. Nancy Northup, the president of the Center for Reproductive Rights, says that if the conservative-majority Court sides with Mississippi, 50 years of constitutional precedent would be thrown out the window.
In this year’s session alone, over 500 anti-abortion bills have been proposed in state legislatures, with 70 of them being enacted so far.
In recent years, nonprofit organizations like Abortion Access Front have struggled to get their message across to the public. They say Big Tech’s to blame. Social media platforms like Facebook and Twitter have placed limitations on political ads, which has hindered these groups’ ability to notify Americans of attacks on reproductive rights. “The public hears the rumblings of what’s happening in one state here and one state there,” says Winstead. “But they don’t understand the totality of it.” She says that the media’s only paying attention now that the issue has reached Barrett and Kavanaugh’s laps.
Public support for abortion access is at 59 percent, close to a historical high, according to Pew Research Center polling. But making it a salient issue, especially to younger people who have never known a time without Roe, is a challenge that may only be realized amid crisis.
Red states are already gearing up for the Court to side with Mississippi. Ten states have “trigger laws” in place, which means that if Roe v. Wade is overturned, abortion will automatically become illegal there. According to the Center for Reproductive Rights, 24 states are “hostile” to abortion, and will likely try to repeal abortion rights if Roe falls.
The criminalization of abortion could take many forms. Penalties, fines, and jail time are all on the table. “The criminalization of pregnancy and pregnancy-related outcomes is not a new phenomenon in the U.S.,” says Preston Mitchum, the policy director for the nonprofit Unite for Reproductive and Gender Equity (URGE). He says the trend will only worsen.
One state that would invariably become a hot spot for abortion criminalization is Texas. On Wednesday, Gov. Greg Abbott signed a fetal “heartbeat bill” into law, which bans abortions after just six weeks. (Most women don’t even know they’re pregnant until four to seven weeks, making this close to a total ban.) According to the law, private citizens can sue any individual who “aids or abets” an abortion after the six-week mark, such as the physician, front-desk personnel, or a friend or family member who drives the patient to the clinic.
If abortion does become illegal—or severely restricted—in nearly half the country, states that do have expansive abortion access, like New York and California, will undoubtedly be put under additional pressure for resources, as pregnant people seek abortions across state lines.
Ten states have “trigger laws” in place, which means that if Roe v. Wade is overturned, abortion will automatically become illegal there.
According to Jackie Blank, a federal legislative strategist at the Center for Reproductive Rights, this is already playing out. One example is the relationship between Missouri and Illinois. Pregnant people from Missouri routinely seek out abortions in Illinois, which doesn’t require a 72-hour waiting period. Blank says that these abortion state border crossings, which put undue pressure on the clinics that do remain, will become the norm if Roe isn’t upheld. With pregnant people flooding into the remaining abortion “safe havens,” increased wait times could affect everyone.
Ever since the Court ruled on abortion protections in 1973, attacks on the ruling have been relentless. That’s why groups like URGE and the Center for Reproductive Rights have pushed for legislative action in recent years, to stymie the threat of a judicial repeal. “Courts have never been a bastion of justice for the communities that have needed it the most,” says Mitchum.
The Women’s Health Protection Act could be the solution. The bill was first introduced to Congress in 2013, and although it was brought up again during last year’s session, it never made it to the floor for a vote. On Wednesday, Senate and House co-sponsors, including Rep. Judy Chu (D-CA) and Sen. Richard Blumenthal (D-CT), announced that they will reintroduce the bill in a few weeks, with the members saying that the bill would ensure that abortion remains a “fundamental right.”
I asked some of the bill’s key architects whether they thought Republicans would strike it down; they evaded the question. With the filibuster in place, such a bill that relies on Republican support would go nowhere. But the anti-abortion ranks among Democrats are nearly nonexistent, meaning the bill would have a chance in a Senate without a supermajority threshold.
“It’s a pretty critical bill,” says Elizabeth Nash, the principal policy associate on state issues for the Guttmacher Institute. “The Supreme Court’s announcement that they’re taking the Mississippi case could be a signal to Congress that they need to pay attention.”
As high-profile issues are typically resolved at the end of Supreme Court sessions, a ruling in the Mississippi case will probably come down in June 2022, just a few months before the midterm elections. That offers an opportunity for abortion rights advocates to mobilize voters, in a way they haven’t traditionally been relative to the pro-life right.
