The Looming Supreme Court Decision on Abortion

May 20, 2021

On Monday, the Supreme Court announced that, next term, it would hear a challenge to a 2018 Mississippi abortion law, which conservative legal scholars have said provides an opportunity to overturn Roe v. Wade, the landmark decision that ensures civil rights for pregnant people. The Mississippi law mirrors a Louisiana statute that the Supreme Court ruled unconstitutional in a 5-4 decision just a few years ago. But the Supreme Court has changed.

Justice Ruth Bader Ginsburg passed away and was succeeed by Justice Amy Coney Barrett, who President Trump appointed to court largely because of her anti-abortion ideology. Barrett’s confirmation as a Supreme Court Justice skewed the balance of the Supreme Court, creating a 6-3 conservative majority that could very well endanger Roe v. Wade despite decades of past precedence that protects legal abortion for everyone.

Access to safe, affordable abortion is a health and economic issue that affections millions of people. One in four women in America today have had an abortion by age 45. Nearly wo-thirds of the women who have abortions have already had at least one birth and 75% are low-income or poor. Research shows that forcing people to delay abortion, denying them abortion and forcing them to expand their families before they are ready has negative long-term consequences for the pregnant person and for their families.

How could abortion access change if Roe v. Wade is overturned or restricted?

If Roe v. Wade were overturned, abortion would likely become illegal in at least 22 states right away making it a crime. The closest abortion provider to more than 40% of women in the United States would close. The average distance individuals seeking abortions would have to travel could increase by more than 200 miles creating a huge burden for low income women who are seeking this service and effectively denying abortion access to anyone who doesn’t have the money, time and opportunity to exercise this option.

Even if the court decides not to overturn Roe v. Wade directly, however, the restrictions they might allow could dramatically restrict access to abortion. When Texas instituted onerous restrictions in 2013, the number of legal abortions fell by more than half in 20% of Texas counties. The restrictions were particularly damaging to abortion access for Hispanics and low-income patients in the state.

While Roe v. Wade is primarily known as the case that established abortion rights as implicit in the 14th Amendment’s privacy protections, but it also protects the civil rights of pregnant people more broadly by clarifying that fetuses do not have separate rights under the law that supercede those of the pregnant person. Abortion opponents have long sought to overturn the law and create legal fetal personhood, which could have tremendous consequences and result in criminal punishment for pregnant people and not just for abortion. Any behavior that is deemed a danger to the fetus could become a crime–from miscarriage to addiction to even failure to wear a seatbelt.  Without Roe v. Wade, courts could also restrict a pregnant person’s right to “due process of law, informed consent, bodily integrity, liberty and life.”

Do Americans Support Turning Abortion Into a Crime?

Americans have a complicated view of abortion, but they overwhelmingly oppose overturning Roe v. Wade. At the same time, a significant number also support increased restrictions on abortion and some even support more extreme views. Over half of Republicans support prosecuting doctors or providers who provide abortions.  Nearly half of Republicans also support legal punishment for people who have abortions even thought incarcerating women for abortion takes them away from their other children and breaks up families.

As we wait for the SCOTUS decision, it’s important to consider what women will lose if Roe v. Wade is overturned and how people will be able to exercise fundamental decision-making power over whether or when to start a family because of these changes. Abortion is basic healthcare. Like other healthcare services, taking it away from people can only have negative consequences for themselves and their families.