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What Do You Need to Know about the Overturning of Roe v. Wade?

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Abortion rights protesters march across the Brooklyn Bridge during a demonstration in New York City. Photo credit: Ben Von Klemperer /

In 1973, the US Supreme Court’s ruling on Roe v. Wade recognized the right to an abortion, citing the US Constitution’s guarantee of personal liberty under the 14th amendment. On June 24, 2022, the US Supreme Court ruled 6-3 to uphold a Mississippi abortion ban that was challenged in the case of Dobbs v. Jackson Women’s Health Organization and overturned the landmark Roe v. Wade ruling on a 5-4 vote, ending nearly 50 years of federally protected abortion rights and greatly diminishing the range of reproductive choice for American women.

We asked several AU professors to weigh in on the implications of this decision.

Roe v. Wade has officially been overturned, giving states the ability to regulate or ban abortion. What does this mean for women, trans men, and AFAB non-binary people who live in American states with “trigger” laws and other types of bans?
The overturn of Roe v. Wade diminishes the sexual and reproductive rights of all people living in the US by increasing the number of states where abortion is completely illegal and providing momentum to anti-choice activists working to chip away at a broader set of rights across all states. Diminished rights—which come in the form of reduced availability of care, increased costs of care, and threats of legal action—are experienced most acutely by those who are marginalized because of poverty, sexual or gender identity, race or ethnicity, or citizenship status. These groups’ more limited resources, heightened risk of persecution, and experiences of discrimination tend to decrease their access to sexual and reproductive health care far further than the letter of the law. Pregnancy already has a higher risk of mortality than a safely performed abortion, so banning abortion will elevate US maternal mortality, which is already disproportionately higher among these groups of people. —Professor Rachel Robinson
The roll out and interpretation of all the several types of bans on the books is creating mass chaos for people in need of abortion care. Clinical care providers are open one day, closed the next, and then offering limited services on yet another day. This is called abortion clinic churn, and research has shown that churn leads people to have to make dozens of phone call as well as scramble for time off, money, and help with transportation. Abortions are delayed, leading people to need abortions later in their pregnancies, which is both more expensive and less accessible. Some people are led to believe that abortion is illegal, and they stop seeking abortion care.
Litigation organizations are suing states in state courts for abortion bans that are poorly written, vague, or conflict with other prevailing laws. In some situations, the cases are asking the state Supreme Courts to find/affirm the right to abortion within the state’s constitution. In some states, positive rulings are temporarily halting the implementation of bans. No one knows how all these cases will be resolved, but over time, we can expect that abortion will be unavailable within half of all states.
In order to access a desired abortion, women, trans men, and AFAB non-binary people will have to travel out of state to one of the remaining states where abortion remains legal. Most of these states are in the West or Northeast. Colorado, New Mexico, and Illinois will be the most likely proximate states for most people living in banned states. North Carolina, Pennsylvania, Kansas, and Virginia have legal abortion today, but their political landscapes put future abortion access at risk. —Professor Tracy Weitz
How tied are abortion rights to other reproductive rights, including access to contraception and access to sexuality education?
Abortion politics overshadow all sexual and reproductive issues in the US. While many factors led to this being the case, the implication is that no reproductive health issue is “safe” from being framed in polarizing, abortion-related terms. Anti-choice advocates provide rhetoric and resources in support of those seeking to limit access to contraception and comprehensive sexuality education. Furthermore, the US exports these politics abroad whenever the global gag rule is in place, limiting US family planning aid from going to nongovernmental organizations that use their own, non-US funds to provide abortion services, information, referrals, or advocacy. —Rachel Robinson
Abortion rights are tied to other reproductive rights legally and culturally. Legally, the right to privacy undergirds the legal right to contraception and dismissal of it in the overturning of Roe shakes that foundation, no matter how much some of the justices pretend it does not. Additionally, opponents of abortion are also committed to reducing access to contraception and abortion. They funded and celebrated the Burwell v. Hobby Lobby Stores, Inc. legal decision in which corporations were allowed to deny insurance coverage for contraception based on religious beliefs.
Since the early struggles for birth control in the early 20th century, advocates for contraception have distanced themselves from abortion in an effort to gain more social legitimacy. In the 1970s, the US government passed the Helms Amendment, prohibiting the use of foreign aid dollars from funding abortion as a method of family planning. The impact of this politically-driven separation has negatively impacted the health and well-being of women around the world. In addition, it has done little to protect access to contraception. Opponents of abortion also disagree with widespread access to contraception and sexuality education. Collectively, education, contraception, and abortion represent a threat to the conservative worldview of sex only within married, heteronormative family structures for the purposes of reproduction. The US Conference of Catholic Bishops that worked to overturn Roe also opposes contraception coverage in health insurance and denies gender affirming care in Catholic-owned hospitals.
As long as abortion is socially and legally contested, access to medically accurate, gender affirming sexuality education and contraception will not be secured. —Tracy Weitz
This ruling will not affect communities across the US equally. What groups of people are going to bear the brunt of this decision, and why?
Abortion is disproportionately needed by people who experience the burdens of structural racism and economic stratification. Before the overturning of Roe, the majority of abortion patients in the US lived at or below the federal poverty level. Over half were women of color and 60 percent already had a child. These people already struggled to access abortion care since thirty-three states and the federal government prohibit Medicaid coverage of abortion (with a few limited exceptions that never actually work). Although we have limited data on their abortion care use and needs, it is reasonable to assume that people whose gender identity is nonnormative also struggled with accessing care even before the bans went into effect. —Tracy Weitz
Are reproductive rights considered part of the international human rights framework? And, if so, how can the US justify ending the federal protection of these rights?
The UN’s core women’s rights treaty—the Convention Against All Forms of Discrimination Against Women (CEDAW)—guarantees women equal rights in deciding "freely and responsibly on the number and spacing of their children and to have access to the information, education, and means to enable them to exercise these rights." This somewhat opaque language serves as a primary basis for the international human rights framework’s recognition of women’s reproductive rights, including the right to an abortion. It also serves as a main reason for Republican objections to the convention and why the United States is among a small handful of countries that are not a party to it. Despite this recognition, women’s reproductive rights have been repeatedly challenged by coalitions of states with governments enmeshed in religious politics (for example, the Holy See and Saudi Arabia, but also at times Russia and the United States). At the same time, the rise of progressive governments in places like Chile, where religious politics has resulted in restrictions on abortions but a new constitution currently being drafted includes the recognition of women’s reproductive rights, are going in the opposite direction of the United States. —Professor Shadi Mokhtari
In the opinion, Justice Alito writes that overturning precedent that was erroneously decided is acceptable; the opinion compares Roe v. Wade, a ruling that extended rights for women, to Plessy v. Ferguson, a ruling that constrained rights for Black people. What do you think about the comparison of these two rulings in the opinion?
Just because an analogy is made does not mean it makes sense. When the Court overturned Plessy v. Ferguson, it did so to expand rights to Black people, not to return their rights to a time when they were more constrained. The idea of “separate but equal” was replaced with the finding that segregation was unconstitutional in Brown v. Board of Education. Roe could have been overturned in an analogous way, finding instead a greater right to reproductive autonomy by eliminating the viability standard for allowable restriction of abortion rights or finding an affirmative obligation of the government to assure access to care. However, overturning Roe to allow states to take away rights is nothing at all like what happened in overturning Plessy. Abortion rights opponents have used the Plessy case in their arguments against Roe for many years. What they have wanted with this analogy was the recognition of the rights of the fetus—not the rights of some states to restrict abortion. When Alito used this analogy, he used it incorrectly, even from the perspective of the anti-abortion movement. It does signal, however, that there are some members of the Court who might, in the future, assign legal rights to fetuses.
Critiquing the analogy raises a more critical point. Adherence to precedent is not, in and of itself, a reason to keep a legal understanding in place. As progressives imagine the country’s future, they should imagine the overturning of Citizens United v. Federal Election Commission [2010] and a host of other cases in which corporations are seen as people with rights. Some of these cases will be 50 years old themselves by the time they are overturned. Stare decisis should not be affirmed at the cost of making a more inclusive democracy. To return it back to Roe, Roe should not have been affirmed because it was a 50-year-old legal precedent; it should have been affirmed because people who can become pregnant deserve the right to control their bodies, futures, and how and when they form their families. —Tracy Weitz
Is there anything meaningful that the executive branch can do to help women in this moment?
There are many things the executive branch can do to help women. Primarily, the executive branch needs to publicly recognize the social value of abortion and affirm that people who have abortions are making good decisions for themselves. President Biden agrees with the idea that the government should not ban all abortions, but he stops short of supporting abortion. He falls back on his Catholic beliefs in being personally against abortion. However, his religion also rejects same-sex marriage and artificial contraception—two things he supports. He needs to continue to question why he can reject some parts of his teaching and not others. When he first went to Congress, Biden supported anti-abortion policies. He has evolved since then, and he needs to continue to evolve in his understanding of the importance of abortion to people’s actual lives.
Returning to policy, the executive branch needs to be creative and not self-censor ideas because they do not know how the actions will be handled by the courts. One important avenue is ensuring that federal Medicaid is paying for all abortions that are legally allowed under the federal Hyde Amendment. Because of the federal government’s general avoidance of abortion, this system does not work—and it could. Second, the federal government could address the abortion misinformation. Currently, federal government websites have almost no information on abortion. They could include information on what abortion is, where to obtain it, how to get it funded, and what places to avoid. Third, the executive branch could make the US post-offices across the country safe places for people to engage in a telehealth visit with an abortion provider and subsequently a place to receive and take abortion pills on federal land. Fourth, the executive branch could make grants available to organizations that help people travel for abortion care. Fifth, nurses in the public health service could be deployed to help with staffing crises in abortion clinics seeking to ramp up services. Sixth, the Department of Justice could help local law enforcement agencies enforce the Freedom of Access to Clinic Entrances Act, so protesters do not disrupt clinical services in places experiencing high demand for services. Seventh, the Centers for Disease Control and Prevention could collect data on the patients who are obtaining abortion care to document the disproportionate impact of abortion bans on communities of color, young people, and low-income individuals. Eighth, the National Institutes of Health could release an RFP to study the health, social, and economic consequences of the Dobbs decision. Ninth, the Federal Trade Commission could enforce false advertising regulations against online crisis pregnancy centers that deceptively claim that they refer for abortions when they do not. And 10th, the Department of Health and Human Services could issue guidance on how health professional reporting of patients they suspect have self-managed an abortion is a violation of the Health Insurance Portability and Accountability Act (HIPPA).
As this list demonstrates, there is no end to possibilities for executive branch action. Inaction should be considered unacceptable. —Tracy Weitz
Is there a role for civil society and NGOs when it comes to helping women access safe abortions when they live in a state that prohibits them altogether?
There is always a role for citizens, civil society, and nonprofit organizations to play in supporting sexual and reproductive health and rights. Many groups have already developed effective strategies for supporting people seeking abortions—raising funds for travel to where abortion is available, escorting at clinics, and advocating for legal changes large and small. Perhaps more so now than ever, those who support abortion rights, reproductive health, and contraceptive access need to speak up, and loudly. Sixty percent of Americans believe that abortion should be legal in all or most cases, and that figure has been above 50 percent for almost every single year of the past 25 years. That means that there are millions and millions of Americans who support the rights that the Supreme Court just helped take away and who need to effectively challenge the smaller, but very vocal and well-organized, group of anti-choice Americans. —Rachel Robinson
There is a key role for civil society and non-profit organizations in ensuring that people obtain what they need to be able to end their undesired pregnancy. This includes helping people travel out of state to a clinic in a state where abortion remains legal. People will need financial support to pay for the abortions as well as travel and lodging. National and local abortion funds are critical. Some of these organizations are staffed by volunteers and others have professional staff.
Many people who are pregnant and do not want to be can safely end their pregnancies using medication abortion drugs obtained extralegally. Unlike pre-Roe in 1973, we now have substantial evidence that self-managed abortion with medications is safe. Indeed, the World Health Organization now endorses self-managed abortion with pills. It will be the role of activists to ensure that all people living in banned states know about how to obtain and how to use abortion pills. One limitation of this strategy is that people who self-managed their abortion with pills or people who help them obtain those drugs run the risk of criminalization. People with legal training will be needed in every corner of states where abortion is illegal, as most of these cases will be locally handled.
Finally, there is a role for every person who believes that the Dobbs decision was incorrectly decided. Abortion stigma and fear of creating controversy has led many to remain silent about their support for abortion. As such, the anti-abortion movement has been winning the abortion culture war. To secure abortion rights in the future, people need to start talking about their support for abortion. The time for “agreeing to disagree” is over. —Tracy Weitz