According to a memo leaked to Politico yesterday, the Supreme Court has privately voted to overturn Roe v. Wade and Planned Parenthood v. Casey — the first draft majority opinion in the modern history of the court to be disclosed publicly while a case was still pending. The draft opinion, purportedly written by Justice Samuel A. Alito Jr., claims that Roe is constitutionally unsound — that there is no part of the nation’s founding document that guarantees the right to an abortion — and therefore should be overturned. Though the holding will not be final until it is published, likely in the next two months, if the Supreme Court were to limit or overturn Roe, abortion would remain legal in 21 states and could immediately be prohibited in 24 states and three territories.
Though Alito claims that overturning Roe is a democratic measure to correct federal overreach, Republicans are mobilizing to institute a federal ban on abortion in the event Roe is overturned. There is nothing democratic about the state impeding people’s bodily autonomy. And most people agree: 80 percent of people in the U.S. think abortion should be legal in all or most cases, compared to 19 percent who think abortion should be illegal.
Pro-abortion organizers have been pointing to the weaknesses of Roe — which included abortion in the constitutional right to privacy — for decades, but for precisely the opposite reasons as anti-abortioners. Roe never guaranteed our right to abortion, even when it was widely accepted, because, thanks to socioeconomic and political barriers, abortion and reproductive health care have been largely inaccessible for millions of people. (Some feminists have been calling instead, for example, for a federal abortion rights law.)
The memo also puts forward the view, echoed by Donald Trump appointee Justice Amy Coney Barrett as well as legislators earlier this year in Mississippi, that legal protections for pregnant people, including so-called “safe haven laws” and the increased acceptance of pregnancy outside of marriage, negate the necessity for abortion. “Women are not without electoral or political power,” Alito writes. “The percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”
A recent study estimated that a total abortion ban in the U.S. would lead to a 21 percent increase in pregnancy-related deaths overall, with a 33 percent increase among Black women. The draft opinion also comes as the United States faces some of the highest rates of maternal mortality in the world, as well as some of the highest health care costs and the least support for pregnant people, mothers, caregivers and families. The average cost of delivering a child in the U.S. was $233,610 in 2015; with inflation adjustment, Investopedia estimates that the cost of raising a child in 2022 is $272,049. According to a report published by the Centers for Disease Control and Prevention in February, the maternal mortality rate in the U.S. for 2020 was 23.8 deaths per 100,000 live births, up from 20.1 the previous year. This is more than double the maternal mortality rate of other high-income countries, including the U.K., Canada and France.
In Mississippi, whose abortion ban is at issue in the pending Dobbs v. Jackson Women’s Health Organization case, 33 childbearing people die per 100,000 pregnancies — one of the highest maternal mortality rates in the country. For Black women in the U.S., rates of maternal mortality are even higher (55.3 for non-Hispanic Black women) and these rates are significantly increasing over time. This statistic is reflected in Mississippi as well, where Black childbearing people are three times as likely to die from a pregnancy when compared to people of other races.
Moreover, there is no federally mandated leave for expectant parents, further creating an environment that is unsupportive of parents’ ability to care for their children postpartum.
The claim that the United States has become a safe and dignified place for people to give birth and raise children is frankly absurd — especially given that the same right-wing lawmakers engineering abortion bans are also at the forefront of dismantling and obliterating any kind of social safety net which would actually uphold and affirm human life.
Abortion bans are deadly. The leaked Supreme Court memo comes in a context of mounting bans, including in Florida (bans abortions after 15 weeks of pregnancy), Idaho (6 weeks), Kentucky (15 weeks), Oklahoma (almost entirely), Mississippi (15 weeks) and Texas (6 weeks) — some of the most draconian bans on abortion since Roe, adding even more onerous obstacles to those seeking care, such as traveling far away, increasing costs, and risk of deportation and incarceration. In April, 26-year-old Lizelle Herrera, for example, was arrested in Texas for an alleged “self-induced abortion,” with her bond set at $500,000. Abortion bans will disproportionately endanger poor people, people of color, Indigenous people, trans people, undocumented people, people who cannot travel to receive an abortion and people who cannot afford prenatal care.
The memo also claims that contraceptive access will not be endangered by striking down Roe — but the anti-abortion movement has claimed with increasing fervor that the morning-after pill, hormonal contraception and the copper IUD are abortifacients, tantamount to medical and surgical abortion.
Alito claims that there has been no historic right to abortion in the U.S., which is false. Though enslaved Black women were prohibited from having abortions because it decreased their owner’s profits, through 1861, abortion was permitted in all states, albeit socially “undesirable.” Efforts to professionalize the medical field and expand the political influence of physicians meant that by 1910, every state had anti-abortion laws, many of which provided exemptions to protect the life of the pregnant person. Abortion has been legal in this country far longer than not.
The leaked memo also echoes a frequent anti-abortion talking point painting abortion as a racist practice, obscuring that abortion bans are and have always been about instituting a racist, right-wing agenda. In the mid-20th century, as segregation ended and the civil rights movement changed the social and political landscape of the U.S., conservatives turned to abortion as an issue that would allow them to continue to galvanize support among white Americans. Additionally, further criminalization of abortion opens the door to even more intensified policing, surveillance and incarceration of immigrants and communities of color.
Many reproductive rights groups will seek to defend Roe in the courts in the coming weeks. But whether or not Roe has technical constitutional viability is besides the point. Abortion is a human right, one which the majority of Americans support, whether the U.S. constitution guarantees it or not. It will take a mobilized, militant grassroots movement to protect reproductive rights. There are people who have been helping others have abortions for a long time. Reproductive justice advocates, feminists and allies have always fought to protect that right, and this work continues despite whatever the Supreme Court may decide.
A list of abortion funds — which help abortion seekers travel to states where abortion is accessible — can be found here. You can find a guide to abortion pills and self-managed abortion here. You can also order abortion pills here before you’re pregnant. No matter what the Supreme Court decides in the coming weeks, we are going to keep having and providing abortion for all people who want or need them.
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