The Future of Reproductive Rights
The Background of Roe v. Wade
By Volunteer Writer, Amanda
When Justice Blackmun originally wrote the opinion on Roe v. Wade in 1973, it set a federal precedent that the right to abortion was included in a woman’s constitutionally protected right to privacy. The Constitution does not explicitly give women the right to reproductive choice, but the Supreme Court supported this right by arguing it is covered under the umbrella of the right to privacy. These types of rights that are not spelled out are considered to live in the “shadow,” or, prenumberance, of a more defined right in the Constitution. A woman’s right to abortion comes from the Due Process Clause in the Fourteenth Amendment, which prohibits states from violating citizens’ right to privacy. Unfortunately, because the right to abortion is not clearly stated in the Constitution, it does not enjoy the same robust protection as some other named rights. Since it is a written opinion of the court, it is subject to being changed or overturned as future precedents are set and opinions are written. This is one of the downsides of the Supreme Court setting a national precedent over issues that were once under the individual states’ jurisdictions. It creates a challenge in the fight to protect the human right of reproductive choice and the right a woman has over her own body. These rights are clearly under attack today.
The original Roe v. Wade opinion put forth the trimester timeline of when a woman could or could not justifiably choose to terminate a pregnancy. The thought process behind this was: the further away a future citizen is from being born, the less vested interest the state has in that pregnancy. The more “potentiality” a fetus has along the timeline of development, the more interest the state has in the pregnancy. A first trimester abortion was considered to be totally the decision of the mother and her doctor. The second trimester prompts more questions about the circumstances surrounding the pregnancy - viability, health and safety of the mother, etc. The third trimester was when the state had the most interest in ensuring the birth of a future citizen, and so the mother had the least amount of control over that time period as the state seeks to protect its own interests. While imperfect, this opinion set a revolutionary standard for reproductive choice that superseded individual states’ legislation surrounding abortion. Since that was the federal Supreme Court’s ruling, that was the law of the land. Any law passed by a state in contradiction of this case law would be struck down as unconstitutional.
Changes to Roe v. Wade: Planned Parenthood of Southeastern Pennsylvania v. Casey
Aspects of Roe v. Wade have already been overturned with the Justices O’Connor, Kennedy, and Souter’s introduction of the undue burden test. In the court’s opinion in Planned Parenthood v. Casey (1992), the court adopted the undue burden test in lieu of the trimester stages of pregnancy outlined in Roe v. Wade. This test is currently the legal standard by which the Supreme Court decides if a proposed abortion law violates the Constitution. It takes into account the totality of the circumstances surrounding a pregnancy and seeks whether or not being restricted from an abortion places an undue burden on the woman. The undue burden itself is defined by, “a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Subsequent legislation has tested this standard and shored it up as a protection of every woman’s fundamental right to control her reproductive health choices.
The Planned Parenthood v. Casey decision set the precedent for how states could legislate and restrict matters of abortion. For example, the 24 hour waiting period was not found to be an undue burden, and thus, if a state mandates that in its jurisdiction, it is not unconstitutional. Notifying the father, on the other hand, is considered an undue burden on the mother and therefore, states that would seek to impose this requirement on women are in violation of the Constitution.
Protecting Reproductive Rights
As it stands, Roe v. Wade protects every woman’s right to an abortion under certain circumstances. Individual states cannot go against the precedent set by the Supreme Court and drastically ban or criminalize abortion. Attempts to do so, for example Georgia’s six-week abortion ban and Texas’ push to allow criminal prosecution and the possibility of the death penalty for those who perform abortions, have historically been tied up in legislation, blocked by judges, or otherwised ruled unconstitutional. Texas currently has the most restrictive abortion laws in the US, and is one of several other states that have “trigger laws” ready to go into effect should Roe v. Wade be overturned partially or completely with the intent to ban or greatly restrict abortion access. With a 6-3 conservative majority on the Supreme Court after Trump’s appointment of Amy Coney Barrett, it was widely suspected that an effort to overturn Roe v. Wade was coming. The leaked draft was an unprecedented turn of events in that no Supreme Court draft opinion has ever been leaked before while a case is still pending. The incident has brought into question the court’s integrity and its impartiality as a judicial body. An investigation has been launched into how and why the breach happened. A final opinion will be the ultimate say on whether or not reproductive rights will be fundamentally changed in the United States.
Why is the Supreme Court Addressing Roe v. Wade Now?
The Supreme Court rules on cases that primarily come from lower appellate courts, mostly through federal courts of appeal and sometimes cases arise from state Supreme Courts as well. The federal Supreme Court establishes legal precedent and rules on issues in which lower courts cannot agree on the interpretation of the Constitution. The Supreme Court has the final say, and rulings can only be amended or overturned by a new ruling of the Court. The case that prompted the leaked draft opinion is Dobbs v. Jackson Women’s Health Organization, which is a pending Supreme Court case challenging not only the constitutionality of a 2018 Mississippi state law banning most abortions after 15 weeks, but also of the consitutionality of the right to abortion overall. This is what makes it a landmark case in this issue - it’s the first time a state has asked the Supreme Court to overturn the consitutionally protected right to abortion. The leaked draft opinion for this case is what has sparked a nationwide response to the possibility of Roe v. Wade being overturned in the coming weeks.
What the Leaked Draft Opinion Does and Does Not Do:
The leaked opinion DOES NOT:
Ban or criminalize abortion, as of right now
Represent a final decision or official court position on the matter
Become law or legal precedent until a final opinion is published
Reverse or overturn Roe v. Wade or Planned Parenthood v. Casey as of right now
Provide criminal ramifications for women seeking abortion as of right now
Change any state’s current laws and restrictions on abortions
Prevent or allow any state to change their abortion laws at this moment
The leaked opinion DOES mean that:
The US Supreme Court has had an internal vote in which the majority was in favor of overturning Roe v. Wade
The first draft of the court’s opinion essentially says that the right to an abortion is not protected by the Constitution
Roe v. Wade is likely to be overturned
IF overturned, individual states can and will enact their own legislation regarding abortion access and restrictions
Trigger laws will go into effect immediately in some states IF Roe is overturned
The legal language surrounding reproductive rights will likely change. Justice Alito did not use the Roe-era language of a fetus being a “potential life,” but instead refers to a fetus as an “unborn child” in the draft opinion. This also means anti-choice proponents will run with this language in their activism and legislative efforts
A final decision will be released by the Court in the coming weeks, which may or may not contain changes to the leaked first draft
What Feminists Can Do Next
It is more crucial than ever for women to get involved in politics at the state level in their home states. If Roe v. Wade is overturned, the future of reproductive rights will essentially be thrown back to the individual states to decide. Women must and will make our voices heard to our legislators, at marches, in our communities, and at the ballot box.
Here are seven key things feminists can do right now and in the coming future to help protect women’s rights:
VOTE - This issue is expected to motivate many voters both young and old to take a more serious look at their local ballots and make informed choices of who to vote for. Look at your state’s government website to find out important election dates. Make sure you are registered to vote and know where your polling place is.
DONATE - If you’re able, locate and donate to your local abortion fund to help women who are in need of reproductive health care ASAPasap.
DELETE YOUR DATA - if you use an app to track your periods, consider deleting your account and the app. Many women use period trackers and accept the terms and conditions without fully reading how the app protects their private information - or how they don’t. With the impending possibility of states like Texas coming after women who have abortions (and possibly even non-medically induced miscarriages) with criminal charges, protecting your private fertility and reproductive information is more important now than ever. Privacy experts have concerns that app data could be used as evidence against a woman for seeking an abortion or when exactly she became pregnant. Period tracking data is not always protected under HIPAA, and many apps already share de-identified information with third parties. The popular app Flo was reprimanded by the FTC for sharing data that it told users would not be shared with third parties. Some apps and fitness tracker devices that are not dedicated to just menstrual charting are worth looking into how well your data is protected, also - think Oura Ring, Whoop, Apple Watch, FitBit, Garmin, and more.
VOLUNTEER - Find your local abortion clinic and volunteer as an escort to assist women walking to and from their cars for their appointments. Oftentimes, protestors purposefully harass and intimidate women going in and out of reproductive healthcare clinics in an attempt to shame and/or prevent them from receiving care at that clinic.
PREVENT - If you are sexually active with men and are of reproductive age, stock up on pregnancy tests and make a habit of testing yourself regularly. A weekly pregnancy test can help you know your status in a timely manner, which could make a huge difference if you live in a state where abortion restrictions are extremely early on in a pregnancy. Always practice safe sex. Consider backup methods of birth control. There may not be much benefit to stocking up on the morning after pill, or, Plan B, as the pill does expire and is not effective for women in certain weight ranges.
RESEARCH - Some states have restrictions on self-managed abortion, such as medication abortion (the abortion pill). It is not always easy to order the necessary medication for a self-managed medication abortion, even though this is a very common and safe option for women. Find out more about the legal options at www.reprolegalhelpline.org. Learn more about other options such as www.womenonwaves.org in situations where safe abortions are nearly totally banned.
RUN FOR OFFICE - Consider running for local or state office in your home state so that women’s voices have more representation in this and other matters. VoteRunLead is a nonprofit dedicated to training and supporting women who run for office. They offer candidate training programs, free resources, a support network, and tools for running a successful campaign. We need more women in places of political power everywhere in the country, and with reproductive rights potentially becoming a state issue, it is all the more reason to have equitable representation of women in our legislatures.
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