According to an initial draft majority opinion that was leaked on Monday, the Supreme Court’s conservative majority decided in a preliminary vote to strike down the constitutional right to abortion established by Roe v. Wade in 1973.
It’s a crushing blow to the abortion rights movement, but it’s not the end of the fight. Going forward, we will need to rethink our strategies and brace for the hard battles ahead.
The draft opinion, written by Justice Samuel Alito, takes a hard-line position against the constitutional right to abortion, saying that states can criminalize abortion with no exceptions for rape and incest. “We hold that Roe and Casey must be overruled,” writes Alito. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Twenty-six states are likely to ban abortion without the protections of Roe, according to the Guttmacher Institute. Republican-led states have been placing restrictions on abortion access for years but have been especially emboldened since the Supreme Court took on the Dobbs v. Jackson Women’s Health Organization case deciding on the constitutionality of a 2018 Mississippi state law that banned abortion after fifteen weeks of pregnancy. States enacted more than a hundred abortion restrictions in 2021 alone, with another thirty-three enacted in 2022 as of April 15.
The antiabortion laws that have been passed in red states just the last few years give us a window into the intentions of conservative legislatures. In Texas, SB 8 allows any private citizen anywhere in the country to sue anyone who performs an abortion or “aids or abets” anyone seeking an abortion in the state after an embryo’s cardiac activity can be detected, often around six weeks into a pregnancy. Abortions in Texas dropped nearly 60 percent in the first month that the country’s most restrictive abortion law was in effect. Since then, at least seven states have introduced bills mimicking the Texas antiabortion law. Tennessee recently captured headlines proposing a bill that would ban all abortions, with no exceptions for rape or incest, and allow a rapist’s relatives to sue abortion providers. In April, Oklahoma Republican governor Kevin Stitt signed a near-total abortion ban into law, which threatens prison for providers.
All of that has happened with Roe in place. When it’s overturned, all bets are off.
Things are about to get very difficult for people seeking abortions, especially for those whose life options are already constrained. Access to abortion is already limited for poor people, people of color, and residents of rural areas. The end of Roe will mean more pain, suffering, and violence for the most marginalized women. Those seeking and providing abortion care in conservative-led states are already being targeted and criminalized; without the protections of Roe, the most vulnerable will be open to even more criminalization. Furthermore, poor people and people of color are most likely to suffer from complications caused by being forced to carry unwanted pregnancies, exacerbated by unequal access to health care and racial inequities in the medical system; in 2020, the maternal mortality rate for black women was almost three times higher than for white women.
Republicans will not stop at overturning Roe. Their true goal is to enact a nationwide six-week abortion ban, and fetal personhood bills to give fetuses equal rights to pregnant people, or even privileged rights. And it won’t stop at abortion, despite assurances in Alito’s draft that “nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
Right now Democrats control both houses of Congress and the White House. They should respond to the court’s decision by attempting to pass federal legislation codifying the right to abortion. It will require ending the filibuster, which won’t be easy, but if the Democrats want to be known as the party of abortion rights, then they will have to make the attempt.
That might be a tall order, though, as Democrats are unreliable in their actual commitments to abortion rights. For example, Democrats and Republicans alike have long supported the Hyde Amendment, which bans most federal funding for abortion through programs like Medicaid. It took Joe Biden until 2019 to take a public stance in opposition to the Hyde Amendment.
We can pressure Democratic politicians to support reproductive rights, but we cannot rely on them for the leadership we need when so much is at stake. Instead, we’ll need to provide leadership ourselves — and that means revisiting and updating the strategies of the abortion rights movement.
Roe v. Wade declared that women’s right to privacy gave them a constitutional right to abortion during the first two trimesters of pregnancy. The majority of Supreme Court justices are considered originalistswith ties to the Federalist Society, and in Alito’s draft opinion he states that the right to privacy does not provide the constitutional right to abortion. It’s possible that other established rights based on privacy could be next on the chopping block, perhaps including the right to engage in private consensual sexual activity and access to birth control and contraception.
Horrifying as that prospect is, it can provide a roadmap for how to broaden and build the power of the abortion rights movement. The wave of attacks on LGBTQ rights, especially those of trans youth, are being supported by the same conservative politicians and fundamentalist lobbyists behind the most restrictive abortion bans. To fight such an organized movement of economic and social conservatives, abortion supporters need to recognize the interconnectedness of current struggles and expand our movement to include activists fighting for universal health care, LGBTQ rights, and an end to mass incarceration and police brutality.
We should also revisit the position that abortion is a private choice, framing that has long been embraced by the mainstream reproductive rights movement. The right to privacy is not only a shaky constitutional foundation for abortion but also insufficiently firm ground to build a political movement on. Organizing a mass movement in support of privacy rights and individual choice has not worked. Ceding the political terrain around abortion has made it exceedingly difficult to break down the shame and stigma associated with reproductive health care decisions, making it even easier for antiabortion religious conservatives to gain political power and influence public opinion.
Many people have no real choice when it comes to abortion; state restrictions, a lack of providers in rural areas, and high health care costs limit access for millions of people and also limit “choice” as an organizing framework for a mass movement for reproductive freedom. It’s time to let go of choice as our organizing framework and focus on access and justice instead.
The leaked document is a draft opinion — the final opinion will likely not come until June or early July. As of now, abortion is still legal. But we can’t wait until Roe is officially struck down. We should immediately take to the streets to demand free and equal access to abortion. We need to support the work of reproductive justice organizations, providers at independent abortion clinics, and abortion funds who have been sounding the alarm for years about the lack of reproductive health care access for poor and working-class people.
Going forward, we will be more reliant on self-managed abortion and sending abortion pills by mail. As for surgical abortion services, we will need to support organizations that help people traveling to abortion-friendly states to receive care. Find your local abortion fund and donate what you can, and share info on local funds with your friends and followers.
Most importantly, take to the streets, not just once but over and over again until the message is clear and impossible to ignore. We cannot rely on politicians, the courts, or the mainstream nonprofits to defend the right to abortion. We can only rely on each other, and we can’t give up the fight.