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April 13, 2022 Voices

What’s at Stake When Roe v. Wade Falls

By Kathryn Kolbert and Julie F. Kay

The views expressed herein represent the opinions of the authors. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities.

As advocates who have argued landmark cases in reproductive rights, we see on the horizon a reversal of 50 years of hard-fought precedent for American women’s rights. By now, it is commonly accepted that there are five Supreme Court justices, creating a majority, who will soon dismantle our federal constitutional right to abortion. First established in Roe v. Wade and later preserved in Planned Parenthood v. Casey, the decision of whether or not to have an abortion has been considered a critical right since 1973. Regardless of whether the Court erases the right this term when it rules on Mississippi’s 15-week ban in Dobbs v. Jackson Women’s Health Organization, or in subsequent cases heading toward its docket, the end is near.

Once the Court ends the federal constitutional protection for abortion, essential reproductive health care will become significantly more difficult, if not impossible, to obtain. Despite the fact that a majority of Americans—75 percent—believe that abortion decisions should be made by a woman with her doctor rather than regulated by law, abortion is likely to be banned in nearly half the states post-Roe.

Last year, a record number of anti-abortion laws were introduced nationwide: 108 passed in 19 states. Legislators in red states have taken the opportunity to turn back the clock on Roe’s protections, encouraged by the Supreme Court’s green light to Texas’s ban on abortion after six weeks of pregnancy. The states now banning or severely restricting abortion comprise a vast swath of America—from Georgia west to Texas and from Idaho south to the Mexican border. Those who need abortions will have to travel far to obtain legal medical care.

Today, too many women and LGBTQ+ people who get pregnant are unable to obtain an abortion and other vital reproductive health care because of restrictions and a limited number of abortion facilities. Every time a new abortion restriction takes effect, the impact falls even harder on those who have the least access to health care and social supports, on those who experience structural racism, poverty, or youth that limits resources and impedes the ability to travel. As more and more states ban abortion, these discriminatory effects will only get worse.

As we’ve seen internationally, when abortion is made illegal, the results can be deadly for any pregnant woman. Patients who seek illegal abortions often put their lives and fertility at risk. There are far too many instances of those experiencing miscarriages losing their lives as a result of medical providers delaying treatment for fear of being criminally charged with violating abortion bans.

In January 2022, a woman in Poland pregnant with twins died after one of the fetus’s heartbeats stopped and doctors refused to perform an abortion. She was the second pregnant woman to die as a result of Poland’s abortion ban, and protesters again poured into the streets demanding legal abortion as those in Ireland had after a similarly tragic death a decade earlier. Even in the United States, following the Texas ban on abortion, reports surfaced of women experiencing pregnancy complications, miscarriages, or ectopic pregnancies who were delayed care or forced to travel out of the state for treatment, risking their lives and health.

Whatever your view of abortion, the loss of Roe significantly affects our constitutional and human rights of liberty, equality, bodily integrity, and dignity. Only when a woman is able to control when, whether, and with whom to have children is she able to fully participate in and control the direction of her life. Justice Ruth Bader Ginsburg urged the Supreme Court to further ground abortion rights in the 14th Amendment’s equal protection clause as she noted that

in the balance is a woman’s autonomous charge of her full life’s course . . . her ability to stand in relation to man, society, and the state as an independent, self-sustaining, equal citizen.

Furthermore, the loss of Roe and Casey threatens long-standing principles of stare decisis that have been applied by the Supreme Court for decades. When Roe and Casey are overruled, it won’t be due to any change of circumstances (as normally justifies such a dramatic shift in precedent) or other compelling reasons. As Justice Stephen Breyer noted in his oral argument at Dobbs, quoting the Court in Casey, “[t]o overrule under fire in the absence of the most compelling reason, to reexamine a watershed decision, would subvert the Court’s legitimacy beyond any serious question.” Dismantling precedent may not end with Roe and Casey. Already, there are calls to overturn Griswold v. Connecticut, the case that provided constitutional protection for legalizing contraception and undermining LGBTQ+ rights.

As lawyers, we know the loss of Roe will have reverberations for a range of rights and the integrity of the Supreme Court. As activists, we know outrage and organizing are warranted and necessary now.

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By Kathryn Kolbert and Julie F. Kay

Kathryn Kolbert and Julie F. Kay are coauthors of Controlling Women: What We Must Do Now to Save Reproductive Freedom. Kolbert co-founded the Center for Reproductive Rights and, in 1992, argued Planned Parenthood v. Casey in the Supreme Court. Kay is a human rights attorney who has argued for abortion rights internationally, including before the European Court of Human Rights in the case of A, B and C v. Ireland, which spurred the liberalization of Ireland’s abortion law.