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In May, Texas Governor Greg Abbott signed House Bill 8 into law, banning the practice of abortions after an embryonic heartbeat can be identified, which can be as early as six weeks. This caused an uproar, as reproductive rights activists argue that laws such as Texas’ are unconstitutional because they violate Roe v. Wade, in which the Supreme Court declared the right to terminate a pregnancy up until the time that the fetus can thrive independently outside of the womb, which usually occurs during the twenty-third week of pregnancy.
With the newly-conservative leaning of the Supreme Court, after forty-fifth President Donald Trump appointed Justice Amy Coney Barrett after the death of Justice Ruth Bader Ginsburg, many are concerned about the future of abortion rights in the United States. Interestingly, the Supreme Court ruled for Texas’ heartbeat ban to stay in place but declared that abortion providers could sue the state of Texas in federal court. The case will be turned over to a district court to be discussed further, but there is little hope for the few reproductive health clinics that are still open in the state of Texas. In a statement delivered after the December 10 ruling, President Biden declared: “While it is encouraging that the Court ruled that part of the providers’ lawsuit may continue, this ruling reinforces that there is so much more work to be done - in Texas, in Mississippi, and in many states around the country where women’s rights are currently under attack."
It is important to understand that most state abortion bans have been blocked by higher-level courts - all but those in Texas, Idaho, and Oklahoma. As organizations from both sides of the abortion debate look to the Supreme Court to determine the constitutionality and morality of Roe v. Wade and six-week abortion limits that have been enacted in various states, Texas serves as a chilling look into what a post-Roe v. Wade America could look like. As well as banning abortion after a heartbeat is detected, Texas’ new law sanctions lawsuits against clinics, doctors, and anyone who “aids or abets” an abortion performed after cardiac activity is found in the embryo. Since the legislation came into effect on September 1 of this year, abortions in the state of Texas have decreased by fifty percent, according to a study by the University of Texas. This drastic change has put immense strain on clinics in neighboring states due to people whose pregnancies are past the six-week limit to travel hundreds of miles to receive care.
At face value, six weeks may seem like ample time to identify pregnancy and choose whether to continue or terminate. However, a deeper look into the menstrual cycle’s mechanics reveals that isn’t the case. Assuming someone has a twenty-eight-day, or four week, regular menstrual cycle, they’d have a window of two weeks to decide what course of action to take - and that’s the best-case scenario. For the many people who have irregular cycles due to stress, fatigue, or medical conditions, the expectation that they’ll be aware of their situation and able to prepare themselves within the window this new legislation demands is an unrealistic one. And, even if someone goes through all the motions of a pregnancy test, making an appointment, and showing up to a clinic, there’s no guarantee that they’ll receive an abortion. Because states near Texas are so overwhelmed by the number of patients seeking abortion procedures out of state, wait times for appointments have increased tremendously. In Oklahoma, people may have to wait as long as twenty-three days before their first appointment.
Furthermore, states which adopted extremely restrictive abortion legislation - such as Kentucky, South Carolina, and Louisiana as well as Texas, require patients to wait for a twenty-four-hour period between the time of their initial ultrasound at a clinic and their abortion procedure. In Missouri, patients must wait for three days. This time is crucial to whether or not someone will be able to terminate their pregnancy, as heartbeats can become detectable in a matter of days. When people in need of abortions come up over the six-week mark and the heartbeat of their embryo is found, they’re forced to travel across state lines to other clinics, enduring financial and familial strain due to procedural, travel, and hotel stay costs, as well as securing care for any children they already have.
Proponents of Texas’ abortion legislation celebrated the Supreme Court’s decision to uphold the ban; "We are grateful that the Supreme Court practised judicial restraint today and stopped the Biden administration's pro-abortion campaign against the strongest Pro-Life law being enforced today," Texas Right to Life Director of Media and Communication Kimberlyn Schwartz said in a statement. Conversely, progressive organizations rebuked the Court’s position. Russ Feingold, the president of the left-leaning legal advocacy group, the American Constitution Society, said that “the judiciary fails to uphold well-established constitutional rights compounds the harm to pregnant people, to the legitimacy of our judiciary, and to the credibility of the Supreme Court."
The case that will decide whether Roe v. Wade will become a thing of the past is Dobbs v. Jackson Women’s Health Organization; which began to develop in 2018 when the latter challenged the constitutionality of Mississippi's newly announced Gestational Age Act, which prohibits nearly all abortions after fifteen weeks of pregnancy. The U.S. District Court for the Southern District of Mississippi and the U.S. Court of Appeals for the Fifth Circuit both maintained that the law was unconstitutional under the Supreme Court’s precedents in Roe v. Wade and Planned Parenthood v. Casey, both of which acknowledged the constitutional right to pre-viability abortion. Now, after hearing oral arguments on December 1, the Supreme Court is expected to issue a verdict by the summer of 2022.
This decision is being anxiously anticipated and speculated on by many. Notably, moderate Chief Justice John Roberts voted with the minority on the decision to uphold Texas’ six-week restriction. In his dissenting opinion, he argued that despite the controversiality of abortion, House Bill 8 is unconstitutional based on Roe v. Wade and the precedents set by other court cases involving abortion rights. “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” he wrote. It appears that Justice Roberts seeks a compromise between his five conservative colleagues and the two to his left, as he indicated in Mississippi's oral arguments that he desired to keep some part of the provisions given in Roe v. Wade.
As for Robert’s five solidly conservative counterparts, three of which were appointed by President Trump, there isn’t much hope for the future of abortion rights in America. Justice Clarence Thomas, appointed in 1991 by President George Bush, voted to overturn Roe v. Wade in 1992 as a dissenter in Planned Parenthood v. Casey. In his 2000 dissent arguing for the preservation of Nebraska’s ban on “partial-birth abortion,” Justice Thomas wrote, “Although a State may permit abortion, nothing in the Constitution dictates that a State must do so.” Justice Thomas’ four conservative peers: Justices Gorsuch, Coney Barrett, Kavanaugh, and Alito also hold that restrictions on abortion by individual states do not disobey the federal laws set into place by Roe v. Wade.
There is hope, however, as progressive Justices Kagan, Sotomayor, and Breyer have been recorded to advocate strongly for the full preservation of Roe v. Wade by states. If Justice Roberts is successful in persuading one of his conservative colleagues to vote against Mississippi's restriction, the Court will keep the standard for abortion rights that was established in 1973.
Ultimately, the fight against reproductive autonomy is not one for the sanctity of life, but of exerting control over people who were assigned female at birth. This is proven through the hoops that the architects of bills like those of Texas and Mississippi have built for people to jump through to access the basic ability to regulate their bodies, choose whether and when to start a family, determine the stories of their lives, and participate as equals in America. Additionally, the pro-life advocacy groups who argue so strongly for every child to be given a chance through birth rarely mention the thousands of children living in poverty, hunger, and foster care because their parent was forced to bear a child they weren’t ready to provide for. They base their ideology on their often privileged experience, without consideration for people who have different circumstances. They use inaccurate and reactionary language, referring to the pregnancy as a “fetus” before the eight-week mark, despite the medical consensus that before the eighth week of pregnancy, the proper term is “embryo”. Their fierce entitlement and lack of regard for the unconstitutionality of the legislation they support and the decisions of Roe v. Wade and Planned Parenthood v. Casey puts the lives of people who choose to undergo unsafe procedures out of a desperate need to terminate their unplanned pregnancies in jeopardy. True compassion for human life is expressed through caring for the mental, emotional, and physical health of people who are already fully developed and have partners, friends, and children to take care of—in ensuring that every family has enough to eat, safe housing, and access to education—not in taking away their bodily autonomy all for them to be compelled to carry a fetus to term.
Roe v. Wade was decided on the principle that the Framers intended to be carried out via the Fourteenth Amendment: that every person in America is treated equally under the law. For people born with a uterus, this includes the freedom to terminate a pregnancy. At the time that the Fourteenth Amendment was added to the Constitution, enslaved women were being forced to carry the children of the men deemed their masters. They were denied marriage to the men they loved, and their children were taken from them. These women had no social standing; no ability to speak out about what was happening to them or prevent the dissolution of their families. Up until the middle of the twentieth century, enslaved, Black, and poor women were pushed to work as wet nurses for the children of upper-class women. Their ability to participate in the intimate experience of breastfeeding their own children was robbed from them by people who had no respect for their bodily autonomy or freedom to plan their own families.
Today’s circumstances are different, but despite all of the advancements that the United States has made for gender equality, the lack of worth associated with the lives of people assigned female at birth has survived. If Mississippi prevails in its case, the future is grim for the reproductive rights of the American people.
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