Late January marked the 49th anniversary of Roe. V. Wade, the Supreme Court decision that legalized abortion nationwide. It could very well be the last.
In 1973, Roe codified the right to terminate a pregnancy up until viability — around 23-26 weeks. Anti-abortion forces have fought to negate the decision ever since, and now they appear to be winning.
Two cases are now pending before the right-wing Supreme Court, and either or both could mark the end of safe and legal abortion in the United States.
Texas has outlawed abortion after six weeks, before many women know they’re pregnant, and turned to vigilantism to enforce it. Anyone anywhere can collect a $10,000 bounty by suing anyone who “aids and abets” an abortion after six weeks (like giving a patient a ride to a clinic).
The U.S. Supreme Court has allowed abortion providers to challenge the law, but it will remain in place while legal challenges play out in lower courts, which will take many months. Meanwhile, abortion in the Lone Star State after six weeks remains inaccessible.
The second Roe challenge comes out of Mississippi, which has banned abortion after 15 weeks.
Though it has held that abortion rights are protected under the U.S. Constitution for nearly 50 years, by hearing this case last December the court is signaling that these rights are in serious jeopardy. A decision is expected in June.
If the court finds the Mississippi law constitutional, it would effectively overturn Roe, which is something Americans oppose by a nearly 2-to-1 margin.
Both cases not only shred the right to privacy, but pose serious threats to women’s health. Twenty-one states have laws on the books that could restrict or outlaw abortion if Roe is overturned.
None of these laws will stop abortions — they will merely stop legal abortions, sending women back to the “back alleys” and seriously threatening their health. It’s difficult to calculate, but some estimates before Roe put the number of women who died each year from illegal abortions in the thousands.
What can be done immediately if Roe is overturned? Not much. Amendments guaranteeing the right to privacy in state constitutions or enacting state laws protecting abortion rights could take years. Even if they were successful, women in anti-abortion states would still be out of luck.
There’s been at least one serious proposal to just let the states vote on the right to abortion.
Most voters may support it — but rights shouldn’t be up for a vote. Would we hold votes on bringing slavery back? Or on rolling back the rights of women and people of color to attend school, vote, and receive equal treatment under the law?
The longer game could be won instead by ratifying the Equal Rights Amendment to the U.S. Constitution, which states: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”
Anti-abortion forces have long opposed the ERA because they believe (probably correctly, according to many constitutional scholars) that it would protect the right to abortion. That’s because the right to make decisions about reproductive health care, including abortion, is central to any understanding of gender equality.
There’s an active fight in Congress right now over whether the ERA has met the legal qualifications to become part of the Constitution. The House has voted to remove the old deadline for ratification, which passed years ago, but the resolution faces an uphill battle in the Senate.
Meanwhile, women wait in fear. To take a line from the 1920s, when women were campaigning for the vote “How long must women wait for liberty?”
Martha Burk (@MarthaBurk) is the director of the Corporate Accountability Project for the National Council of Women’s Organizations (NCWO). This op-ed was distributed by OtherWords.org.
