The very high stakes for abortion rights and access
Forty-six years after the Supreme Court affirmed the right of women to obtain an abortion in Roe v. Wade, supporters of that decision have faced a fierce assault from conservative religious opponents. The basic framework of Roe was altered in Casey v. Planned Parenthood to allow restrictions that did not place an “undue burden” on a woman’s ability to exercise her right to obtain an abortion. That phrase has been the terrain of struggle ever since.
But it’s not all bad news. All this is happening as support for abortion rights is high. Fifty-seven percent of all Americans think abortion should be legal in all or most cases. Indeed, about 40 percent of all women have had abortions. Last year more than half of all states adopted measures to expand or protect access to sexual and reproductive health care. In fact, 2018 was the first in recent years when the number of proactive policies enacted outpaced new restrictions. Even Mississippi said no back in a 2011 referendum intended to endow a fetus with personhood, with obvious dire consequences for abortion rights.
Joerg Dreweke of the Guttmacher Institute provides an important insight into the reaction to such support. In the face of changes in social mores that the ultra right opposes, coercion, not persuasion, has become their weapon of choice. To the extent that defenders of Roe are drawn into battles over the width of clinic corridors without a forceful defense of the basic principles of Roe and of women themselves, we cede the battlefield to those whose ultimate goal is to empower the state to control women’s bodies. While we need to point out the absurdity of many of the legislative attacks against Roe, we can’t let the opposition bog us down in apparent minutiae that obscures the underlying rights at stake.
The fight to save Roe has drawn my organization, the National Council of Jewish Women, and many allies into a campaign for a mainstream judiciary committed to fundamental constitutional rights. Through unprecedented obstruction of President Obama’s nominees, culminating with the blockade against the Supreme Court nomination of Merrick Garland, the ultra right has gotten its dream court, with a 5–4 majority now opposed to Roe. It has achieved widespread success in state legislatures, hacking away at access to abortion to the point where millions of women, as a practical matter, can no longer obtain abortions at all, and millions more cannot access later abortion no matter the circumstances.
Anti-abortion cases are now making their way through the federal courts, initiated by those who see a new opportunity to challenge Roe. But they are unlikely to win an outright reversal. Chief Justice Roberts may prevent a majority from taking such a drastic and unpopular step, even though in Whole Women’s Health v. Hellerstedt he supported Texas restrictions that would have shuttered 75 percent of abortion clinics in that state. Instead Roe will die a death of a thousand cuts inflicted by the dissenters in Hellerstedt and their new brethren on the court.
For example, a three-judge panel recently let stand a Texas ban that excludes Planned Parenthood as a Medicaid provider, based on spurious allegations made in doctored recordings of Planned Parenthood staff discussing abortions provided by the organization with private money. Federal law already bars the use of federal funds to pay for abortions except when the life of the mother is threatened. Thirteen other states investigated the video recordings and decided the allegations were completely bogus. But such is the atmosphere ginned up against Planned Parenthood by abortion’s most fanatic opponents.
In a Louisiana decision this month, another three-judge federal panel ruled 2–1 to let stand a decision upholding Louisiana’s requirement that abortion providers have admitting privileges at nearby hospitals. To no avail, the dissenting judge pointed out that the requirement clearly conflicts with the Supreme Court decision that struck down a similar Texas law.
These are the kinds of cases the Supreme Court will undoubtedly take up this year or next. It’s on all of us to educate the public about the court cases winding their way up to the top that would chip away at Roe, rendering it meaningless. It’s on all of us to educate about the job of the Senate to advise and consent on judicial nominees who fill lifetime seats and hear the majority of cases, with decisions that last generations. And, it’s on all of us to make sure voters in 2020 understand what’s at stake for women and their families when they go to the voting booth. A woman’s bodily autonomy is still at issue despite 46 years of abortion rights. To be able to decide when and if to have a family should be a driving issue for us all. Without a strong federal legislative response to codify reproductive health, rights and justice, we can’t rely on the courts as a backstop to preserving abortion rights. We’re on shaky ground with the current state of Roe and Trump’s remaking of our federal courts, including the Supreme Court, should give everyone pause.
