A Threat to This Country: The U.S. Supreme Court
Issue 16, Volume 112
By Erica Li
After a leak of the Supreme Court’s draft opinion, the nation grappled with the possible consequences of Roe v. Wade being overturned. By June 24, 2022, it was official—the Supreme Court of the United States (SCOTUS) upheld Mississippi’s ban on abortion at 15 weeks, thus overturning the 1973 landmark case that protected the federal constitutional right to receive an abortion. Now, it is up to the power of each state’s government to decide reproductive rights.
Justice Samuel Alito’s 40 page opinion makes it clear that by passing the power to the state, the state would be serving “legitimate state interests” such as the “respect for and preservation of prenatal life at all stages of development.” He further argued that because abortion was not rooted in history and that it wasn’t until the latter half of the 20th century that abortion was made a consitutional right, the U.S. Constitution could not protect it. However, contrary to what Alito believed, for most of the first 100 years of American history, early abortion was legal. An early abortion was loosely defined as prior to fetal “quickening,” the moment when the fetus’s movements could be detected. Before quickening, it wasn’t considered an abortion if women were allowed to take medication or other treatment to try to get their menstrual period back. And even when the government tried to restrict reproductive rights, regulation relied on the person’s own experience since only they would know when quickening would occur. The right to whether or not a person should receive an abortion was, and should still be, up to the person carrying the pregnancy.
The overturning of the case holds many repercussions. According to the Center for Reproductive Rights, 25 states are likely to ban abortion and 13 states even currently have “trigger laws” in place that are set to make abortion illegal immediately after the falling of Roe. For example, in Louisiana, the legislation would define “personhood” as beginning from the moment of fertilization and even classify abortion as murder, making it a federal offense. This meant that anything that would prevent a fertilized egg from becoming a real pregnancy and being born would be considered murder, including intrauterine devices and emergency contraceptives like Plan B. Other states, like Michigan, have old abortion laws that used to be invalidated by the Roe decision but may now be enforced once again. Similarly, the Ohio Supreme Court allowed the state to reinstate a ban on abortions at six weeks of pregnancy on July 1. The court went on to deny the emergency petition opposing it from Planned Parenthood.
Without Roe protecting the rights of people to get an abortion, legal abortion rates will most likely decline, as many clinics will soon close across the country. As a result, many women will have to travel farther distances to receive an abortion. In fact, The New York Times estimates that a quarter of U.S. women would have to travel more than 200 miles to get a legal abortion. However, traveling to recieve an abortion will be highly difficult for marginalized communities such as people of color, low-income Americans, and those living in rural areas. Underserved communities will be the ones that are disproportionately affected by the overturning of Roe, as the typical abortion patient is low-income, unmarried, and more likely to be a person of color.
While legal abortion rates decline, maternal deaths will most certaintly increase. Without Roe in place, people who may suffer through life-threatening pregnancies will not be able to access a legal abortion until it is too late, forcing them to either go out of state or get an illegal abortion. An example of this would be the scenarios that many pregnant people have to face once the full abortion ban takes effect in Texas. Right now, Texas’s current heartbeat law states that a pregnant person cannot get an abortion once “cardiac activity is detected in the embryo” or around six weeks. The only exception is if there is a “medical emergency,” which only really happens when the patient is at an imminent risk of dying. This means that even if the pregnant person has an ectopic pregnancy—a pregnancy in which the fertilized egg implants and grows outside the uterus—there is no guarantee that they will be able to get an abortion. Other life-threatening conditions like an infection in the uterus or a hemorrhaging patient also wouldn’t be able to get an abortion because under Texas law, they are not “medical emergencies.” And with the trigger law that is about to be passed, abortion will be made a felony even if the pregnancy was a result of rape or incest. Abortion providers are already starting to turn pregnant people away out of fears of legal culpability under the Texas law. Dr. Jessica Rubino said, “Get her out of the state […] make sure she can get an abortion because I will not be able to do it here. I’m going to have to wait till she’s actually dying.”
With all these dangers and implications, more pregnant people will turn to illegal abortions. Back in the 1960s, when abortion was illegal, people would pay physicians to fake that they were going through a miscarriage by squirting blood into their vaginas. Once the blood seeped out, the physician would perform a dilation and curettage (D and C) for their “incomplete abortion.” That was the safest option. If the pregnant person could not afford the fees to go through a D and C, they would resort to other extreme measures. Recently, a 16-year-old girl drank lye to abort herself and died as a result. Another patient, Jeretha Tanner, died on the table after an abortion attempted by a pratical nurse, rather than an educated doctor. The undeniable truth is that people would go to extremes to end their pregnancy, despite cost, humiliation, agony, and the risk of sterility or death.
When talking about the strikedown of Roe, the transgender and nonbinary communities are often left out of the conversation. Even when Roe was held, the transgender community was still discriminated against and shunned when they tried to get proper healthcare, which made abortion already hard to get in the first place. With the fall of Roe, the clinics that used to provide the LGBTQ+ community abortion care will lessen. In addition, many of the abortion facilities also provide hormone therapy and other essential services to the LGBTQ+ community. This includes treatments that are specific to a transgender man, if they choose to carry a pregnancy to term. Without these clinics, many transgender people will not be able to access proper health care.
Furthermore, Roe’s knockdown is a threat to all of the Supreme Court’s past rulings. The 14th Amendment, which protected abortion, is connected to other settled freedoms involving procreation, bodily integrity, and familial relationships. In his published opinion, Justice Clarence Thomas argued that the Supreme Court justices should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” which many rightfully see as a threat to other SCOTUS precedents. Griswold v. Connecticut established the right to privacy and legalized birth control (for married couples only at that time) and the potential overturning of this ruling would mean that people can no longer legally use contraceptives. Without contraceptives like birth control and Plan B, there will be higher rates of unwanted pregnancies, causing more people to seek an abortion, legally or not. Lawrence and Obergefell gave the right to same-sex relationships and same-sex marriage, respectively. The potential overturning of these two rulings would move women’s rights back over 50 years and bar LGBTQ+ relationships. Yet as the Connecticut Supreme Court Justice Andrew McDonald noticed, Thomas didn’t include the Supreme Court’s ruling in the 1967 Loving v. Virginia case that overturned a Virginia law barring interracial marriages.
However, all hope is not lost. On a smaller scale, certain states such as New York and New Jersey are making sure that the right to get an abortion is fully protected. For example, the New York State Legislature passed the Equal Rights Amendment, which would initiate the process of not only enshrining the right to abortion in the state constitution, but also guaranteeing the right to acess contraception, and prohibiting the government from discriminating against anyone based on race, ehtnicity, national origin, disability, or sex (including sexual orientation, gender identity and expression, and pregnancy). New Jersey has passed two bills into law that protect out-of-state residents seeking productive services and reproductive health care providers themselves. Even in Florida, a judge has blocked a state law banning abortions after 15 weeks of pregnancy.
Additionally, the United States President Joe Biden recently declared for the first time that he supported ending the filibuster—an action designed to prolong debate and delay or prevent a vote on a bill, resolution, amendment, or other debatable question—to protect a person’s right to an abortion and a greater issue of the constitutional right to privacy. This was an extremely striking assertion from someone who had long resisted calls from the liberal wing of the Democratic Party, asking to strike down the Senate practice of a 60-vote threshold requirement to pass legislation. Biden even went on to say that Roe v. Wade needs to be codified into the law and that Congress needs to act now.
The Supreme Court’s daunting decision to strike down Roe is deadly for everyone throughout the country. No matter who you are, the overturning of Roe will most likely affect you in some way or another. The United States is more polarized than ever, with states either strengthening their laws to guarantee people the right to an abortion or with states passing laws that basically makes it illegal to have an abortion. This also means that there is no greater time than now to vote, as it is now up to the citizens of each state to determine their fate. Vote for your rights, the rights of your family, and the rights of your friends. If you cannot vote, be sure to share and educate others about the issue. Join petitions and protests. Donate to abortion funds and organizations supporting people to get the resources that they need. People across the nation are hurting because of the deadly decisions of the Supreme Court and we can no longer hold our silence.