America Needs a Federal Law Protecting Abortion Rights Now
The overturning of Roe v. Wade had major negative effects on women across the country. The safety net that pro-choice people have fallen against for decades is now non-existent. It's time for a dependable abortion rights law that cannot be modified at the state level.
Roe v. Wade, the landmark Supreme Court decision, was overturned on June 24, 2022. For nearly 50 years, this Supreme Court decision upheld the idea that a woman's right to an abortion was protected by the Constitution under the Fourteenth Amendment.
A leaked document from the Supreme Court confirmed what many reproductive right activists already feared: the Court plans to overturn the landmark Roe v. Wade ruling. “Roe was egregiously wrong from the start,” Justice Samuel Alito wrote in the draft majority opinion leaked to Politico. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This 1973 ruling was a watershed moment for women across the country, affirming that access to abortion was a right protected by the fourteenth amendment of the Constitution. This decision argued that woman's right to choose fell under her right to privacy. With that, abortion, was effectively legalized nationwide. By overturning this ruling, the court puts the power over women’s bodies in the hands of the states, many of which are set to outlaw abortion entirely or almost entirely. Texas, Oklahoma, and Ohio—to name a few—are set to ban abortion as early as six weeks (at which point many women are not even aware that they're pregnant). While the leaked document is a draft and it's possible that one or more justices could change his or her mind in the intervening time, it seems unlikely. When and if Roe is overturned, abortion will no longer be protected by the Constitution.
But Roe v. Wade didn't provide a good stronghold for abortion-rights to begin with, as many previous cases have shown. Despite being the only federal precedent for protecting abortion, the ruling never quite did what it proposed to do. It allowed for many subsequent rulings—as well as state laws—that severely limited women's access to abortion.
One major problem was that the long-standing “viability measure” had become a moving target. Viability—in other words, when a fetus is capable of living outside the mother's womb—has long been a measure for determining cut-offs for when an abortion can be performed. But that measurement has not remained steady over the past decades.
Medicine and science have had many years of advancement since the Supreme Court ruled on the landmark abortion cases Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992. At the time of Roe, viability of a fetus to live outside its mother's womb was placed at about 28 weeks. By 1992, when the Court ruled on Casey, viability had already improved to 24 weeks. A little over two decades later, in 2015, the New England Journal of Medicine conducted a study to assess the impact of differing hospital practices on the survival rates and neurodevelopment of “extremely preterm infants,” meaning those born as early as 18 weeks. The journal concluded that infants born at 22 weeks could be kept alive, but that “hospital rates of active treatment varied widely.” Largely because of this study, hospitals began offering lifesaving care to babies at 22 weeks up from 24 weeks. In other words, hospitals switched from giving "compassionate care" until 24 weeks to giving it until 22. This obviously has resulted in an increasing number of surviving preterm babies. To date, the youngest baby on record to survive a premature delivery was 21 weeks old. Other advances continue to be made. Fetoscopy, or laparoscopic fetal surgery, allows surgeons to perform surgery on a fetus as young as 15 weeks, demonstrating the general improvements in fetal survival. In addition to advanced instruments for delicate surgeries, other modernizations in neonatal care include the use of steroids for lung development, more sensitive monitoring devices, increasingly innovative incubators, and better administration of nourishment for sustainability. Since the time when the Supreme Court legalized abortion and held under Roe that a state did not have an appropriate interest in protecting a life before it was self-sustaining, the viability timeline has been steadily shifting. Under Roe sustainability was set at the third trimester and later improved to the second trimester under Casey. Clearly, viability is a moving target. And with science and medicine continuing to advance, there's no telling how much farther it will move, making it increasingly difficult to determine when a fetus is considered viable.
And the Planned Parenthood v. Casey decision had already lowered the legal standard for defeating pro-choice rights. This 1992 Supreme Court decision upheld Roe but added in new loopholes. The fall-out has allowed for hundreds of anti-abortion laws to get onto the books in the ensuing three decades.
In 1992, under the Planned Parenthood v. Casey decision, the “undue burden” measure replaced the more rigorous "strict scrutiny" standard established under the Roe v. Wade decision. The standard recognized a state’s interest in the preservation of potential life but added that such pursuit cannot place “a substantial obstacle in the path of a woman's choice” and further specified that "unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right." Despite this language, the court has allowed states to impose regulations such as waiting periods and parental consent rules for minors but never a pre-viability ban on abortion—until recently. In 2021, the largest volume of abortion restrictions on record were introduced. Those restrictions come in many forms and limited access to abortion at all stages of pregnancy. A total of 561 restrictions were introduced by all but three states. Of the restrictions introduced, over 100 were enacted into law. The scope of limitations has also expanded and many qualify as an abortion ban; including total bans, trigger bans, reason bans and gestational bans that begin at zero weeks in Arkansas, followed closely by six weeks in Texas and 15 weeks in Mississippi. Of the state gestational bans enacted last year, 12 function as near-complete abortion bans. For example, so-called heartbeat laws enacted in Idaho, Texas, Oklahoma and South Carolina ban abortion once a fetal heartbeat is detected, typically at six weeks gestation and oftentimes before a woman knows that she is pregnant. Overall, 43 states today prohibit or limit abortion at specific points in pregnancy. Standing bills or “trigger laws” that would automatically outlaw abortion if Roe were overthrown are held on the the books of 13 states — including Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, and Wyoming. In total, 26 states have laws or constitutional amendments in place that would ban abortion if Roe were rescinded entirely or in part. Reason bans, ostensibly to further justice in equality, restrict the procedure if the decision is based on gender, race or disability. Arizona, for example, signed an extensive abortion bill in April 2021 that banned the procedure when it is sought for a survivable genetic disorder, such as Down syndrome. Other limitations use varying means to restrict access to the procedure and include regulations on multiple abortions; restrictions on the method and distribution of medication abortion; mandatory ultrasound requirements; proscriptions on private insurance coverage and public funding, and parameters around physician and hospital requirements. Compliance with non-medical requirements (such as parental or spousal involvement, counseling and waiting periods from 18 to 72 hours) are also imposed. Even setting aside the functional and looming abortion bans of the past year, the measure of an undue burden has been applied inconsistently. As demonstrated in Casey itself, which challenged several abortion rights provisions, the Court upheld all except the requirement of a woman seeking an abortion to notify her husband. Doctor-patient informed consent, guardian consent and waiting periods were all allowed to stand, all unduly burdensome by any measure.
Nonetheless, a federal abortion law is something Americans need and want. Despite the divisiveness often portrayed in the media, there is both overwhelming and long-standing support in the U.S. for abortion rights. And those rights are something that need to be protected for the safety and health of the nation's women.
Having access to safe abortions is vital for the health, safety, and livelihoods of American women. In a pre-Roe U.S., women still had abortions—the only difference was that they would risk their lives in unsafe conditions or be forced to pay inordinate sums of money. A federal abortion law protects women's health, especially in the case of incest, rape, or late-stage pregnancy complications. Access to abortion is also important for the livelihood of American women—and American families in general. Forcing a woman to carry a child she does not want to term can lead to negative consequences on her career, perhaps forcing her to drop out of college or take time off work, both outcomes that would negatively affect her earning power and possibly push her into poverty. A long-term study published in the American Journal of Public Health found that women who sought out abortions and were denied were nearly four times more likely to live under the poverty line than those who were given the requested abortion. “When they receive an abortion, they slowly gain employment, and their income goes up,” said lead author Diana Greene Foster, a professor at the University of California. “But when they’re denied an abortion, they’re set back economically, and it takes them years to get where they would have been if they had received an abortion.” Leaving this choice up to state law is inequitable. Many women cannot afford to take time off and travel to another state to secure an abortion—much less move to a state that aligns with their views on the issue. And forced pregnancy can have dire effects: Over half of the country's Black population lives in the South, where states have the most restrictive abortion laws. Black mothers in the U.S. have some of the worst maternal health outcomes. And women living in abortion-strict state have some of the worst child health incomes, according to research from the Commonwealth Fund. The imbalance of state legislating power has led to a tyranny of the minority, where abortion restrictions have increased despite the fact that less than 40 percent of Americans support them. On the contrary, support for abortion rights has remained relatively stable over the past few decades, with between six out of 10 and seven out of 10 Americans saying that abortion should be legal in all or most cases, according to Pew Research. What's more, legislation protecting abortion rights is something that most Americans want. Nearly 60 percent of Americans support a federal law protecting abortion rights, according to a CBS New/YouGov poll published in May 2022.
A federal abortion-rights law is the only way to fulfill the promise begun by the Roe v. Wade decision 50 years ago. And it's the only way forward for American women in order to guarantee their freedom and safety.