Anti-abortion activists are closer than ever to achieving their ultimate goal: overturning Roe v. Wade. This week, they celebrated the news that the U.S. Supreme Court agreed to hear a major abortion case, Dobbs v. Jackson Women’s Health Organization (JWHO). The case concerns a Mississippi state law that would ban almost all abortions after 15 weeks of pregnancy — well before a fetus is viable. With the Court’s new 6-3 conservative majority, the outcome could be devastating for abortion access.
SCOTUS has been considering whether or not to take up this case for a year and a half. They even conferenced on it 17 times before agreeing to take it up. Now we will find out how much this new 6-3 conservative majority respects precedent, as this case gives the Court an opportunity to overturn close to five decades of legal precedent surrounding abortion rights.
Roe established that abortion is permitted until viability, generally at around 24 weeks. Dobbs v. JWHO strikes at the heart of that principle. As it hears the case, the Supreme Court will consider just one, clearly delineated question: Whether or not “all pre-viability prohibitions on elective abortions are unconstitutional.” If the Court decides a ban that prohibits abortion two months before viability is constitutional, it would essentially gut the protections guaranteed under Roe.
And that would open the floodgates. A number of other gestational age bans have been passed in states hostile to abortion rights, though they are currently blocked by lower courts. If the Supreme Court upholds the Mississippi ban, that could all change. What’s more, 24 states would likely act to ban abortion outright should the Supreme Court decide to overturn Roe. In that case, 41 percent of women of reproductive age would see their nearest abortion clinic close, forcing them to travel much greater distances to access abortion care. Right now on average a patient would need to travel 35 miles to access an abortion, but under this new scenario they would need to travel 279 miles.
This has been the goal of anti-abortion activists since Roe became the law of the land, and they have pursued it doggedly with a legislative strategy for decades.
Conservative lawmakers in state legislatures deliberately pushed unconstitutional state laws restricting abortion access to challenge Roe, hoping that an anti-abortion majority would one day dominate the Supreme Court. That day has arrived, and access to abortion care for millions of Americans could soon be decimated.
But let’s be clear: Access to abortion is already inadequate.
The rights enshrined in Roe have never been enough. A flood of restrictions — from the Hyde amendment, to waiting periods, to bans on telehealth for medication abortion — have set up formidable, medically unnecessary barriers to abortion access. Some states uphold reproductive rights, but for many, the ability to exercise their reproductive rights depends on where they live.
This year, on the Population Institute’s 50 State Report Card on Reproductive Health and Rights, Mississippi and 22 other states received failing grades. Looking at the grades on a map reveals they are mostly in the South and Midwest, and contiguous. If the Supreme Court were to decide that pre-viability abortion bans are constitutional, people in the South would have to travel considerable distances in order to obtain basic essential health care. This would present an insurmountable barrier to abortion care for all but those with the means to travel. This is especially egregious today, when people with lower incomes have been disproportionately affected by the pandemic and its economic upheavals.
At a time when we need to make abortion more affordable and accessible, the Supreme Court may completely devastate access to abortion in this country.
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And this is a burden that will not be equally shared.
Rich people will always be able to travel to access the abortion care they want, while those who are already marginalized — Black people, Brown people, low-income individuals, young people, and the LGBTQ+ community — will be left to bear the weight of this infringement on their reproductive freedom.
Jennie Wetter is the director of public policy at the Population Institute and the host of the podcast rePROs Fight Back.