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The anti-abortion movement in the US is emboldened and optimistic after the supreme court announced it would hear a direct challenge to laws underpinning the right to abortion in the US, and Texas enacted a law intended to ban abortion after six weeks.
The high court decision to take up the case and the Texas move come during the most hostile year for reproductive rights in the nearly half-century since pregnant people won the constitutional right to choose whether to terminate a pregnancy in the landmark 1973 case Roe v Wade.
“The long-predicted scaling back of abortion rights by the supreme court just got a lot more likely,” said Mary Ziegler, a legal historian, author of Abortion and the Law in America: Roe v Wade to the Present, and law professor at Florida State University.
Today, abortion is legal in all 50 states up to the point the fetus can survive outside the womb, a legal concept called “viability” established in Roe. This is generally understood to be about 24 weeks (a full-term pregnancy is 39 weeks).
The case taken up by the court, called Dobbs v Jackson Women’s Health Organization, will answer whether Mississippi can limit abortion to 15 weeks, and is brought by the state’s last abortion clinic. If upheld, it would reduce by more than two months the time in which a woman could choose to terminate a pregnancy.
“It’s really hard to see why the court would take this case unless they’re interested in reversing part of Roe or all of Roe,” said Ziegler. Further, the court chose to answer “the most explosive question in the case”, which “suggests they’re not really worried about the political fallout”.
On the right, the hopes are clear: that the court will end the legal right to an abortion, and potentially allow room to criminalize the procedure.
“We’re all hopeful the court will be intellectually honest and acknowledge what the science is clear on – that a unique human life starts at fertilization,” said Lila Rose, founder and president of the anti-abortion advocacy group Life Action. Rose is widely seen as the face of the millennial anti-abortion movement.
Mississippi is just one of 29 states across the south and midwest considered hostile to abortion rights, where 58% of American women of reproductive age live, and which would probably act to further restrict abortion rights.
The supreme court case represents the most severe challenge ever presented to Roe, and is a reflection of how the country has splintered in a decade of Republican-led voting restrictions and partisan gerrymandering, the process of redrawing politicians’ districts to favor one party.
“We’re becoming two countries, and your voting rights and your reproductive rights are increasingly likely to depend on where you live,” said David Daley, a senior fellow at FairVote and the bestselling author of Rat F**ked: Why Your Vote Doesn’t Count.
Historians and analysts drew a direct line from the 2010 Tea Party sweep of state legislatures, which allowed Republicans to redraw districts in their favor, to increasingly extreme and unconstitutional anti-abortion laws, such as the Mississippi law scheduled to be heard by the supreme court.
“Redistricting and extreme partisan gerrymandering creates non-competitive districts where all of the action moves from the general election to the primary,” said Daley. Primaries, he said, “tend to be low-turnout, off-season elections dominated by the most extreme voices”.
A remarkably stable majority of Americans support upholding Roe. Only about 20% of Americans believe abortion should be illegal in all circumstances.
Nevertheless, 2021 has proved to be the most hostile year for abortion rights on record. Since January, more than 70 restrictions have been enacted in 15 states, including 10 outright abortion bans. Not coincidentally, the previous most hostile year was 2011, when Republicans gained wide control of statehouses, according to the reproductive rights organization the Guttmacher Institute.
“[Republicans] have not lost a single chamber in any of those states over the last decade, even in years when Democratic candidates win hundreds of thousands more votes than Republican candidates,” said Daley.
Exactly 1,300 abortion restrictions have been enacted since 1973, when Roe was decided, with 553 coming in the last decade. In other words, it took nearly 40 years to pass 57% of restrictions, and only a decade to pass the rest.
Rose describes this accumulation of anti-abortion restrictions as a “shift in our country on the rights and the value of the pre-born child”.
Daley said there was “no evidence” for Rose’s assertion that more people are becoming pro-life, but there is evidence of increasingly extreme dynamics playing out in a host of other issues, as Republicans block popular policies such as reforms to gun laws, increases in the minimum wage and expanding the franchise.
“It’s entirely a symptom of the extreme partisan gerrymandering,” said Daley.
For anti-abortion organizations, some of which are now putting multimillion-dollar lobbying bets on restricting voting, the supreme court’s decision to take the Dobbs case “reconfirmed the importance of some of these strategies”, said Ziegler.
“The gameplan became to turn out the people who care the most and discourage other people from voting, and not worry about whether the median voter liked what you were doing any more,” said Ziegler.
The result is an increasingly wide divide among states in the south and midwest, most of which are hostile to abortion, and states along the coasts which have girded the legal underpinnings of the right to abortion and explored new ways to help women pay for it.
“Oftentimes, those places become hubs for folks in neighboring states to get care,” said Destiny Lopez, co-president of All* Above All, an advocacy group which has worked in both progressive and conservative states to expand abortion access.
“People kind of see the issue right now as you either have abortion or you don’t. Roe is legal or illegal, and it’s actually much more nuanced than that,” said Lopez, because the right to terminate a pregnancy has always been more difficult for some people to access.
“Those people tend to be black and brown, they tend to be younger, they tend to be immigrants,” Lopez said. “People who are working to make ends meet.”
In Texas, where sweeping voting rights restrictions have been led by anti-abortion Republicans, the state’s move last week meant it became the first to allow a private citizen to sue people who help others obtain an abortion past six weeks gestation. Pro-choice groups are exploring ways to challenge the law, which would come into effect in September.
“The bill grants virtually anyone the right to sue a person helping a pregnant person seeking an abortion,” said Amanda Thayer, a spokesperson for Naral Pro-Choice America, one of the country’s most influential reproductive rights advocacy groups.
“Do we want to live in a world where your Uber driver could be sued for driving someone to access abortion care?” Thayer asked.
What is certain is the court’s decision will have a profound political impact. A decision will probably be issued in June 2022, a few months before the midterm elections.
There are also signs the case is controversial within the court. Justices rescheduled sessions on whether to take the case for months, a highly unusual practice. Four of the nine justices on the court must elect to hear a case to bring it before the court.
But, Ziegler said, “You’re not going to get four justices taking a case unless they feel they can get that fifth vote.”