By Adrienne R. Ghorashi, Esq.
All eyes are on SCOTUS after the Court heard oral arguments on Mississippi’s 15-week abortion ban in Dobbs v. Jackson Women’s Health Organization and issued narrow rulings in cases related to Texas SB8 early this month. The line of questioning, as well as the Court’s continued decision to allow most abortions in Texas to come to a screeching halt, are a distressing signal that abortion rights are in immediate danger. Under Roe and Casey, bans on abortion prior to fetal viability (around 24 weeks) are a violation of a pregnant person’s constitutional right. While some have characterized Chief Justice Robert’s comments as searching for a supposed compromise to overturning Roe, this proposition ignores the stark reality of the legal landscape of abortion in the United States.
Pre-viability abortion bans, such as the one in Dobbs, already exist in 25 states, ranging from bans at any point in pregnancy, to 6-week “fetal heartbeat” bans, to the more common 20-week ban. Pre-viability abortion bans can also include “reason-based” bans that seek to prohibit abortion based on a person’s reason for seeking one. Many of these states have more than one type of abortion ban in their laws. Although most of the more extreme pre-viability bans are not currently in effect due to court rulings (with Texas SB8 being a frightening harbinger of a post-Roe nation), this legal standard is precisely what’s at stake in Dobbs.
In addition, 12 states have enacted “trigger laws” that would purport to ban abortion upon the contingency that abortion is no longer a constitutionally-protected right. Just three states had trigger laws in 2019; the looming possibility of the Court overturning Roe makes this drastic increase even more alarming. Furthermore, nine states still have “pre-Roe” abortion bans on the books that were enacted prior to the landmark ruling, according to recent data published by the Center for Public Health Law Research, and these could potentially be reinstated to prohibit all or most abortions. Any ruling that departs from the established viability standard in Roe invites states to attempt enforcement of these abortion bans, or to pass additional ones. With this concern in mind, New Mexico and Delaware recently repealed their pre-Roe bans.
There are also various laws in place that do not specifically ban abortion procedures but restrict access nonetheless. Laws that prohibit public funding of abortion and limit health insurance plans from covering the procedure force pregnant individuals to cover expenses out of pocket, which can range anywhere from an average of $500 to upwards of $3000. Pre-abortion requirements set out a maze of testing, counseling, and mandatory delay requirements before a person can obtain an abortion, contributing to increased costs, logistical burdens, and delays in care. Having to navigate these restrictions disproportionately harms communities of color, people with low incomes, young people, and rural communities unable to access the care they need. This reality is why reproductive justice advocates have long described Roe as “the floor, not the ceiling.”
For those whose singular goal is to ban abortion, an onslaught of these legislative and policy attacks aimed at decimating access have been increasingly effective at the state level. Six states (including Mississippi) are down to one abortion clinic in the entire state, and 90% of all U.S. counties lack an abortion provider. Today, “crisis pregnancy centers,” which pose as health clinics and coerce vulnerable people into continuing unwanted pregnancies, vastly outnumber the availability of abortion providers and even receive government funding. Still, more extreme and more frequent restrictions on abortion are enacted each year, with no signs of slowing down.
Yet the questions asked by the Supreme Court rarely touched on the lived experiences of pregnant people and what lack of abortion access actually looks like for them. The majority of people who get abortions are already parenting and three-fourths have low incomes. The health risks of carrying a pregnancy to term far outweigh the risks of an abortion — with the maternal mortality rate being 3.5 times higher for Black women than for white women in the United States. Some of the arguments made by the conservative justices can only be described as intellectually dishonest. For example, Justice Barrett stated, “There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden.” In a country without guaranteed paid leave for families, affordable childcare, universal healthcare, and stable housing, this statement is baffling to say the least. Adoption is not simply an “alternative” to abortion because it doesn’t negate the risks or burdens of pregnancy, nor the lifelong trauma that both parent and child may experience through the adoption process and the foster care system. In the political discourse on abortion, the very real and harmful consequences of forced childbearing on pregnant people and their families is too often ignored. These are just some of the many reasons why decisions around pregnancy and parenting are deeply personal, and should be left up to the individual rather than the state.
What’s clear is that half of states are readily poised to ban or further severely restrict access to abortion. As long as the Court decides that any number of individuals being stripped of their fundamental rights is an acceptable political trade-off, anti-choice legislators will not relent. While Roberts wagers that a 15-week ban is not so different from a viability ban, this is only true for those privileged enough to access timely healthcare and afford travel costs. Any so-called “middle ground” that leaves the issue of abortion up to the states will result in an increasingly fractured and inequitable two-tiered system of reproductive healthcare — where communities already marginalized from care suffer the most. Federal protections, such as those proposed in the Women’s Health Protection Act, could be a major step forward in ensuring that a pregnant person’s right to bodily integrity and reproductive autonomy are not up for debate.
Temple University’s Center for Public Health Law Research, in partnership with Resources for Abortion Delivery, maintains the publicly available state abortion laws database. The database has just been updated through October 1, 2021, and tracks changes in state laws, regulations, court opinions, and attorney general opinions regulating abortion access.
Adrienne R. Ghorashi, Esq. is a Program Manager at the Temple University Center for Public Health Law Research.