Washington, D.C. - When Trump’s three Supreme Court nominees were asked if they would vote to overturn Roe v Wade, Brett Cavanaugh said it was “established precedent”; Neil Gorsuch said he would be reluctant to overturn any previous Supreme Court decision; and Amy Coney Barrett dodged the question. We are about to find out what they really think about a woman’s right to choose. The Court’s three newest members are expected to uphold a Mississippi law that bans all abortions after 15 weeks. A 6 to 3 vote in the case would weaken, if not overturn, the 1973 landmark Roe v. Wade decision. The Supremes are expected to make a decision in the Mississippi case in June.
In December, the Supremes let stand a Texas “fetal heartbeat” law (SB 8) that prohibits abortions after 6 weeks and sent it back to be challenged in a lower court. “This decision means there are no protections under Roe in Texas. It also meant that overnight, people in Texas are no longer able to get abortion services,” said Lisa Matsubara, General Counsel for Planned Parenthood Affiliates in California. Lisa Matsubara is General counsel for Planned Parenthood Affiliates of California. She noted about 85% abortions occur after 6 weeks of pregnancy and that those women are no longer able to get an abortion without traveling out of the state.
Because women often don’t even know they are pregnant at six weeks, the practical effect of the law is to ban virtually all abortions in Texas. The law also prohibits defendants who win lawsuits against them from collecting attorneys’ fees and costs. In the meantime, abortion providers in California and other states have seen women come from Texas to get one. California Planned Parenthood health clinics served more than 7,000 out of state patients in 2021. Since the Texas law went into effect five months ago, wait times for abortions in Oklahoma went from 3 days to 3 weeks.
Conservatives have historically supported individuals’ right to autonomy, privacy, and freedom from government intrusion. Not when it comes to abortion. The Texas law has punitive provisions that include a private right of action allowing citizens to sue abortion clinics. And it even puts a bounty on providers and women who get turned in for violating the law. Barring a new federal law, unlikely to pass the U. S. Senate, women’s constitutional right to get an abortion in all 50 states will soon no longer exist.
Copycat bills like SB 8 have been introduced in Florida, Arkansas, Ohio, Arizona, Missouri, and Alabama. Legislators in five other states have announced their intention to introduce similar bills. Those are Indiana, Mississippi, North Dakota, South Dakota, and West Virginia. Tennessee has several anti-abortion bills, including a fetal heartbeat bill, that are waiting in the wings.
“The states have really been a battleground for abortion access in recent years,” Matsubara said. Twenty-six states, including Tennessee, will likely ban abortions if Rove v. Wade is overturned. More than 36 million women, nearly one half of all women of reproductive age (18-49) will lose abortion access if Roe is overturned. Abortion rights have been constitutionally protected for nearly 50 years, so why the sudden change? It’s not based on how people feel about it. A PEW poll in May 2021 found 59% of Americans thought abortion should be legal and 39% said it should be illegal.
Right to Life activists were not been able to impose their religious belief on all Americans so for more than two decades, they have employed a strategy to pass restrictive abortion laws one state at a time. More importantly, they have engaged in a grand strategy to change the make-up of the federal judiciary. They have successfully politicized the courts and it was President Trump who set the stage for a legal challenge to Roe v Wade today.
Trump appointed 231 federal judges, overwhelming white, and they were picked for their opposition to abortion. They are also young and with lifetime appointments, they will be around for a long time. Regarding the Supreme Court, the Republicans blocked a pro-abortion nominee, Merrick Garland, and changed the Senate rules to get Neil Gorsuch approved by a simple majority. Two other Trump nominees, Brett Kavanaugh and Amy Coney Barrett, shifted the make-up of the high court to a 6-3 conservative majority.
What does it mean for whom?
“If Roe were to be overturned it does not necessarily mean abortion would be illegal in every state. That would be up to each state to decide what those restrictions are. It also means states are free to decide whether or not to make sure abortion remains legal in their state,” Matsubara said. She said if you have means, you could afford to travel to another state to get an abortion. “This is an issue that disproportionately impacts people who are low income as well as women of color,” she said.
“You’re talking about young people, some who have never traveled outside their state before,” said Jodi Hicks, CEO and President of Planned Parenthood Affiliates in California. Access to abortion for low-income patients and women of color would have to include childcare, travel costs, time off from work, and places to stay. Hicks said that 60% of women who visit their clinics are people of color, 70% are under 30, and 80% are on some sort of Medicaid program.
Of the 36 million women impacted if Roe were overturned are 5 million Black women, 5.7 million Latinos, 1.1 million Asian people, and 340,000 native people would lose access to abortion services across the country.
“The reality is that those are the communities that already face significant barriers to care,” Hicks said. She said the Hyde Amendment (1980) prohibits using federal funds to pay for abortions except those pregnancies arising from incest or rape. “This is a discriminatory policy and it impacts most Black, Latino, and indigenous people who are experience poverty at twice the rate of their White counterpart in 2019,” she said. Hicks noted that those same communities of color are more likely to rely on federally funded health programs like Medicaid, Medicare, and other children’s health programs.
“Among women aged 15-49, 29% of Black women and 25% of Hispanic women were enrolled in Medicaid in 2019 compared to 15% of White women and 12% of Asian women.” Hicks said the Hyde Amendment currently affects people in 34 states while 16 states provide their own funding for abortion coverage.
“The Hyde Amendment leaves 7.8 million women 15-49 with Medicaid coverage but without abortion coverage. Half of those affected are women of color. Among women with Medicaid coverage subject to the Hyde Amendment, one in four who seek an abortion are forced to continue the pregnancy,” she said. A University of California study found that denying a woman an abortion creates economic hardship and insecurity that lasts for years. They are more likely to stay with an abusive partner and unwanted children have negative consequences for their other children.