Today is the 47th anniversary of the 1973 Roe v. Wade decision by the U.S. Supreme Court. It determined that the U.S. Constitution provides a “right to privacy” that protects a woman’s right to have an abortion if she so chooses.
A 2019 Pew survey found that 61% of American believe that abortion should be “legal in all or most circumstances.” It also found that 70% oppose overturning Roe v. Wade. Nearly 1 in 4 women have an abortion by age 45.
In March, the U.S. Supreme Court will hear the June Medical Services v. Gee case that could result in overturning Roe because the 5-4 majority now on the court are staunchly conservative partisan Republicans. However, the right to an abortion has already been eroded under an onslaught of state laws that make access to an abortion difficult or impossible in many states. In about half of the states, these laws have resulted in the closing of most abortion clinics. In six states, there is only one abortion clinic left. The result is that only 35% of women of reproductive age live in states where abortion is readily accessible, while 58% of women live in states where access to abortion is restricted.
Anti-abortion lawmakers have imposed medically unnecessary mandates on abortion clinics that caused them to close. The mandates have made reasonable physical access to an abortion clinic difficult or impossible for many pregnant women. These lawmakers are imposing further barriers on the women seeking abortions that are medically unnecessary, including mandatory waiting periods, ultrasound tests, biased abortion counseling, invasive pelvic examinations, parental consent, bans on non-surgical abortions (abortion pills), and “heartbeat” bans that make abortions illegal after 6 to 8 weeks of pregnancy.
Aside from medically unnecessary barriers imposed on abortion providers and women seeking abortions, low-income women have the additional barrier of cost. President Obama issued an executive order that extended the Hyde Amendment restriction on federal funding of abortions through such programs as Medicaid to also bar subsidies for private insurance under Obamacare (Affordable Care Act) from covering abortions. Low-income women are forced to buy additional private insurance out of their own funds or pay for an abortion out of pocket. The Democrats pose as defenders of abortion rights, but the record here shows otherwise.
If you can’t practically exercise a right, you don’t really have it.
What We Can Do
Abortion Coverage in Improved Medicare for All
We must continue to insist that improved Medicare for All cover abortion services. That coverage is now included in the proposed Medicare for All bills, but there will be pressure to delete abortion from all medically necessary services when the bills finally get serious consideration. We must insist that abortion be covered in any Medicare for All program.
Protect Title X
We must push Congress to pass legislation that protects Title X and Title X patients. Title X is a federal funding program established in 1970 that provides affordable reproductive health care, birth control, testing and treatment for sexually transmitted infections, and breast and cervical cancer screenings. It disproportionately serves low-income people, people of color, LGBTQ people, and people in rural areas.
Congressional action is needed because in June 2018 the Trump administration issued a “gag rule” that makes it illegal for health care providers who participate in Title X to talk with their patients about how and where they can access abortion. While the gag rule is still being litigated it, most of its requirements went into effect last August and the remainder will go into effect this coming March.
The House included protection for abortion services in Title X in its 2020 budget resolution, but it didn’t get past the Senate. We must continue to push for this legislation.
Preclearance for State Abortion Laws
Congress should enact legislation to require that state abortion laws be pre-cleared by the Department of Justice, just like the Voting Rights Act used to require changes in election laws be pre-cleared by the DOJ before the U.S. Supreme Court repealed that section in 2013.
Of course, enforcement by DOJ requires an administration that supports the law in Roe v. Wade. While we cannot assume this with the current administration, under normal circumstances we should expect it. By enacting this legislation, congress would give abortion rights a fighting chance against attempts by states to curtail those rights.
What If Roe Is Overturned?
In March, the U.S. Supreme Court will hear the case of June Medical Services v. Gee. The U.S . Supreme Court could use this case to overturn Roe v. Wade.
The case challenges a Louisiana law that requires doctors who perform abortions to have admitting privileges at a nearby hospital. If the Louisiana law is upheld narrowly, it will mean abortion providers cannot sue on behalf of the their patients, making it virtually impossible to challenge state abortion restrictions because pregnant women, who would still have standing to sue, are not likely to go to the expense, pubic scrutiny, and years of litigation when their immediate issue is getting a timely abortion.
The anti-abortion movement’s strategy of passing state laws to make accessing abortion difficult has been successful. A 2019 Center for Reproductive Rights study, “What If Roe Fell,” finds that if the Supreme Court eliminates federal protections for abortion, 24 states will quickly criminalize all abortions, while in 21 it is likely to remain legal and accessible. The five remaining states and the District of Columbia do not have laws affirming a right to abortion.
The issue at stake in June Medical Services is the same issue that was at stake before the U.S. Supreme Court in 2016 concerning a Texas law that also required doctors who perform abortions to have admitting privileges at a nearby hospital. That case of Whole Woman’s Health v. Hellerstedt narrowly avoided overturning Roe in a 5-4 decision where where the swing vote to affirm the constitutional right to an abortion in Roe was Justice Anthony Kennedy. Now that Kennedy has been replaced by Bret Kavanaugh, Roe could well be overturned.
It is important to understand that the original Roe v. Wade decision to protect abortion rights has been weakened in subsequent U.S. Supreme Court decisions. The original Roe ruling provided a trimester framework for balancing a woman’s right to choose an abortion with protecting a woman’s health and prenatal life. During the first trimester, governments could not prohibit abortions at all. During the second trimester, governments could require reasonable health regulations. During the third trimester, abortions could be prohibited entirely with exceptions for saving the life or health of the mother. The decision also required courts to evaluate challenges to abortion laws under the “strict scrutiny” standard, the highest level of judicial review.
This framework has been weakened by subsequent U.S. Supreme Court decisions, the most significant of which was the 1992 ruling in Planned Parenthood v. Casey. While Casey affirmed that a woman’s right to choose an abortion is constitutionally protected, it also replaced the trimester framework with “fetal viability” and removed the requirement that new abortion laws are subject to the strict scrutiny standard. The Casey ruling opened the door to state laws that have restricted access to abortion without making it altogether illegal.
Making abortion difficult to obtain even if it is technically legal has been the legal and legislative strategy of anti-abortion forces. But their ultimate goal is to strike down Roe and then continue their effort to make abortions illegal in the states.
How To Fight for Abortion Rights
Public opinion overwhelmingly opposes overturning Roe. It supports legal abortion in all or most circumstances. But the fight to protect and restore abortion rights is going to be with us for years to come, whether or not Roe is overturned in the June Medical Services case. We must make our demands on all politicians of every party for federal funding of abortion services, protection of Title X, and federal pre-clearance of state abortion laws.
The argument that we must defer to and rely on the Democrats to protect abortion rights has been proven wrong. It was President Obama, a Democrat, who issued the executive order that barred Affordable Care Act insurance subsides from covering abortion services. The erosion of abortion rights in so many states across the country has come despite overwhelming public opinion in favor of legal abortion in all or most circumstances. The Democratic Party has failed to translate that public opinion into public policy. The only times we hear Democrats say they will fight for abortion rights is when elections approach. They use the abortion issue to scare people into voting for any Democrat over any Republican. After the election, there is no vigorous fight for abortion rights while continue to be eroded in the states. The Democrats have been able to take the abortion rights vote for granted without following up with action.
Last May, there were over 500 demonstrations supporting abortion rights called by the American Civil Liberties Union (ACLU), the National Abortion and Reproductive Rights Action League (NARAL), the Women’s March, EMILY’s List, Indivisible, MoveOn, Planned Parenthood, and many others. Thousands turned out to support abortion rights. But the speakers at the demonstrations featured Democratic politicians. The implicit message of these nonprofits who organized the demonstrations was to vote Democratic to get the anti-abortion Republicans out.
We will be more powerful if we make our demands independently of either major party when we demand abortion rights. We must be independent like the anti Vietnam War movement was. It demanded Out Now! to every politician. In 1968, President Johnson, who had escalated the war, started negotiating with North Vietnam to help his favored successor, Vice-President Hubert Humphrey. Humphrey’s “antiwar” challengers, Eugene McCarthy and Robert Kennedy, were also calling for negotiations rather than immediate withdrawal. The antiwar movement said there is nothing to negotiate. We kept demanding Out Now! We made that demand on all the Democxrats as well as Nixon and the Republicans. We didn’t say vote for the lesser evil.
By making its demands independently, the anti Vietnam War movement remained strong and uncompromised. It turns out we had more power than we knew at the time. Nixon was not able to implement his “secret plan to end the war” that he had campaigned on, which he didn’t really have but evolved in his first year in office into threatening North Vietnam and its allies with a massive escalation, including tactical nuclear weapons, to force North Vietnam to end the war on terms favorable to Nixon. It was the Vietnam Moratorium demonstrations of millions in October and November 1969, when Nixon had planned his “savage, decisive blow” against North Vietnam, that convinced Nixon to back off or face a popular uprising that would destroy his presidency politically. By the end of Nixon’s first term, he had agreed to withdraw U.S. military forces provided North Vietnam waited a “decent interval” before dispensing with the U.S. puppet regime in South Vietnam. If the antiwar movement had waited to elect a Democrat to president, the war would have gone on much longer.
What was missing in 1968 that would have made the antiwar movement more powerful and ended the war sooner was an independent antiwar political alternative. The lesser evil Democrats (and lesser evil Republicans in many districts in those days) would not be able to take the antiwar vote for granted. The fledging Peace and Freedom Party tried, but it was just getting started. It was too new and too small to have much impact. A big clear antiwar vote would have given leverage to those Democrats and Republicans in Congress who did want immediate withdrawal. Their pro-war colleagues would have found out out that they could not take the antiwar vote in their district for granted.
The same political logic holds today for abortion rights and any other issue. If a progressive votes for the Democrat, nobody knows whether that vote is from a Sanders socialist and Clinton corporatist. The progressives lose their voice, their identity, and their leverage with their Democratic vote. It is clear what votes on the Green line mean for abortion rights and other issues. Politicians have to move to you on the issues when you vote Green if they want to compete for your vote. Even if we don’t win the office, we leverage political power. That is why the Green Party needs to keep running its candidates.