Abortion and Its Recent Legal Battles

Published on: Oct 7, 2021fb-roundtwitter-roundemail-round
Protesters hold placards in Pennsylvania during the Rally for Reproductive Rights in September 2021.Getty Images

Abortion is one of the most divisive political issues in the US. And the debate around a woman’s right to choose has gained renewed attention after Texas’s restrictive abortion law took effect in September. But first, let’s go back to when the battle for abortion rights starts.

The Start of Abortion Rights: Roe v. Wade

In 1973, the Supreme Court ruled in the landmark Roe v. Wade decision that women have a constitutional right to an abortion. Before that, abortion was mostly illegal, although women still got them. But it was often dangerous, expensive, and required some women to travel far. And the stakes were higher for women who had no access to abortion clinics. In some cases, women tried to induce an abortion on themselves by using coat hangers or consuming poison. 

But some women pushed back. From the late 1960s until 1973, a group called “Jane” operated as a secret abortion network. They offered affordable abortions (about $100, compared to $500-$1,000). And took security seriously: Women had to leave a voice message on an answering machine, and a member of Jane would call them back. And some patients were reportedly led to the procedure location blindfolded. The group disbanded after Roe v. Wade went into effect.

Background on that case: In 1969, a Texas woman named Norma McCorvey (known as Jane Roe in later court documents) became pregnant and wanted an abortion. But Texas law only allowed abortion if the mother’s life was at risk. So McCorvey sued the Dallas County district attorney, Henry Wade. The case made it all the way to the Supreme Court, which ruled 7-2 that the constitutional right to privacy protects a woman’s right to an abortion. 

But the ruling left a lot of the specifics up to the states, which have since passed laws that outline very different ways of handling abortion. Like requiring a minor to get a parent to sign off, requiring patients to get an ultrasound before having an abortion, or banning late-term (after about 24 weeks) abortions. Since then, abortion laws have faced many challenges, including…

Planned Parenthood v. Danforth (1976)

  • Shortly after the Roe v. Wade ruling, two doctors and Planned Parenthood sued the state of Missouri over its abortion measures. It included restrictions like requiring a spouse or parent (for patients under 18) to give consent to an abortion. The justices ruled that those restrictions were unconstitutional because it gave “absolute veto power” to a third party. Note: the court did uphold some of the state’s restrictions in this case, including that the patient has to give written consent.

Harris v. McRae (1980)

  • Enter: the Hyde Amendment. It was first passed in 1976, and aims to limit federal funding for abortions under Medicaid. A pregnant Medicaid recipient named Cora McRae sued, arguing the amendment was unconstitutional. But the Supreme Court sided against her and upheld the Hyde Amendment, saying that a woman’s right to choose doesn’t necessarily include “a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.” Meaning: Even though a woman has a right to an abortion, it doesn’t always mean she’s entitled to money to pay for the procedure.

City of Akron v. Akron Center for Reproductive Health (1983)

  • In 1978, Akron, Ohio enacted an ordinance that restricted abortion by requiring patients under 15 to get parental consent and implementing a 24-hour wait period, among other measures. The Supreme Court struck down the restrictions, arguing that many (see: parental consent and the 24-hour wait period) make it difficult for a woman to seek an abortion.

Planned Parenthood v. Casey (1992)

  • In the 1980s, Pennsylvania passed a law that created hurdles for women to get an abortion. See: imposing a 24-hour waiting period and requiring married women to notify their husbands before getting the procedure. Planned Parenthood of Southeastern Pennsylvania sued the state, arguing the law went against the Roe v. Wade precedent. While the justices reaffirmed the 1973 landmark ruling – that women have a right to an abortion – it also upheld most of PA’s provisions.

    • The court set a new standard when it came to abortion rights, looking at whether a law causes “undue burden” aka creates obstacles for women trying to get an abortion “before the fetus attains viability.”

The March for Women's Lives rally, organized by the National Organization of Women, takes place to fight for abortion rights and legal battles in DC in April 1992.
Getty Images

In recent years, there’s been a renewed push to roll back abortion rights across the US. Here’s why: After former President Trump took office in 2016, he overhauled the nation’s courts by appointing dozens of conservative judges, including three to the highest court there is: the Supreme Court. (See: Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.) That led to a push by red states to pass restrictive abortion bills that lawmakers hope will be challenged in court. The goal: bring this fight to the Supremes at a time when the court has a conservative majority, and may be more likely to overturn Roe v. Wade. Which brings us to...

Where Abortion Laws Stand Today

This year alone, more than 561 abortion restrictions were intro’d across the country – at least 97 have already been enacted. Some states that have made moves on this include...

  • South Carolina: In February, SC became the first state to pass a “heartbeat” ban in 2021. The bill, signed into law by Gov. Henry McMaster (R), bans abortions after a fetal heatbeat is detected – as early as six weeks. Note: Many women don’t even know they’re pregnant at this point. A day after the governor signed it, a federal judge blocked it.

  • Arkansas: In March, Gov. Asa Hutchinson (R) signed a bill banning abortions “except to save the life of a pregnant woman in a medical emergency.” The law was set to take effect on July 28. But it was temporarily blocked by a federal judge while the case continues. 

  • Oklahoma: In April, Gov. Kevin Stitt (R) signed three abortion restriction bills into law, including a “heartbeat” ban like SC. The laws are set to take effect on Nov. 1. But a group of reproductive rights orgs have sued to block them from taking effect.

 Protesters hold up signs at a protest outside the Texas state capitol
Getty Images
And then, there’s Texas… 

It passed one of the most restrictive abortion laws in the country. Starting in September, it banned abortions after a fetal heartbeat is detected. There are also no exceptions for cases of rape or incest. And while a number of red states have passed similar bills in recent years, Texas is doing things differently.

Here’s why: The law gives private citizens – not state officials – the power to enforce the abortion ban. Meaning people can sue abortion providers, friends, and family members who they believe violated the law or helped someone get an abortion (think: by providing financial assistance or driving someone to a clinic). And they can get at least $10,000 if they’re successful.

Abortion advocates asked the Supreme Court to block the law from taking effect (which happened on Sept 1), calling it “unconstitutional” and a “full-scale assault” on patients seeking abortions. SCOTUS refused to block it in a 5-4 decision. But the law has been on a rollercoaster ride through the lower courts. In October, a federal judge temporarily halted it, accusing state legislators of an "aggressive scheme" to rob citizens of their constitutional right to get an abortion. Days later, a court of appeals reinstated it – and the Department of Justice asked it to halt the law again.

Overall, abortion providers have seen visitations plummet. And reports have shown the impact the law has had on women in the Lone Star State: The 19th chronicled the experiences at an abortion care clinic in the state hours before the law took effect. The Texas Tribune reported that health clinics in other states are getting inundated with patients from Texas. And Alan Braid, a physician in San Antonio, wrote an op-ed saying that he violated the state law on Sept 6, because he says he “had a duty of care to this patient,” and because the patient “has a fundamental right to receive this care.” He's since been sued by two people, and neither of them live in Texas.

The Supreme Court justices posing for a group photo on April 23, 2021.
Getty Images

The Future of Abortion in the US

All eyes are on the Supremes. In the justices’ upcoming term – which starts Oct 4 – they’ll hear a case out of Mississippi. In 2018, the Republican-led state legislature passed a law that bans most abortions after 15 weeks. Lower courts ruled against it, saying it goes against the bench’s precedent. But Mississippi has urged the court to overturn Roe v. Wade, calling the ruling “egregiously wrong.”

This is the first major abortion rights case that the Supremes will take on with all three of Trump’s nominees. And since Barrett’s confirmation tipped the bench further to the right, abortion rights advocates are worried that the justices could side with Mississippi and potentially overturn Roe v. Wade. SCOTUS isn’t likely to announce a decision until spring 2022.

But if Roe v. Wade were overturned, abortion policy would fall to states. And some states have trigger laws that would automatically outlaw abortion. Poor people would be most affected, since the majority of people who get abortions are low-income and can’t afford to travel as far for the procedure.

Meanwhile, the federal gov is hoping to make some changes with abortion rights, including with…

  • Oversight: Promising a "whole-of-government effort," President Biden has directed his Gender Policy Council and the White House legal team to figure out how the gov can protect women in Texas and their constitutional right to abortion. That includes departments like the DOJ, which has sued Texas over its controversial law, calling it “clearly unconstitutional.” The White House has also called on Congress to step in and pass…

  • Legislation: In September, the House passed the Women's Health Protection Act – which establishes the legal right to abortion in the US (read: codify Roe v. Wade). But it’s not likely the Senate – which is split 50-50 – will be on board. And the filibuster could make it even harder to pass.

2022 won’t just be an important year because of the potential SCOTUS ruling – there’s also the midterm elections. And, surprise: abortion is expected to be a key issue. Like we said above: depending on how the bench rules on the Mississippi abortion case, it could give lawmakers more power to regulate abortion. And while there’s no presidential race in 2022, you’ll be able to vote for lawmakers who can vote on abortion legislation or confirm a president’s Supreme Court justice nominee. (Think: Potentially influencing the court’s future rulings on cases.) 

theSkimm

Abortion is a complex issue that encompasses debates around privacy, women’s rights, and the role of government, as well as difficult questions about when life begins. For many Americans, it’s not as cut and dry as politics increasingly makes it out to be.

Updated on Oct 7 – Updated to reflect the federal judge's decision to temporarily block Texas's abortion law.

Updated on Sept 24 – Updated to reflect that the House passed the Women's Health Protection Act.

Skimm'd by Maria McCallen and Kamini Ramdeen


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