Abortion rights are in question in every corner of the United States. That was made even more clear after the Supreme Court's leaked majority opinion draft on Dobbs v. Jackson Women's Health — an abortion case out of Mississippi. In a Politico exclusive, the draft shows that the Supremes are planning to end a woman’s right to an abortion. While it’s subject to change, it’s left many lawmakers, advocates, activists, women, and allies reeling.
Important note: At this time, abortion is still legal in the US. And a final decision on the Mississippi case — the most significant challenge to Roe v. Wade in nearly three decades — is not expected until June or July.
The country still awaits the Supremes' final (and official) decision. But states haven't been waiting.In the past few years, Republican legislatures have been passing laws that challenge Roe v. Wade. The latest to take on this issue: Oklahoma. In May, lawmakers gave the ‘OK’ to ban the procedure at fertilization — making it the nation's strictest bill.
As states take on this controversial issue, here's your Skimm on how bills and laws are unfolding in 2022. But first, the history of legal battles that shaped abortion laws in the US — and how they led to the challenges we're seeing today.
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 the 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 abortions 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…
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.
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.
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 of them (see: parental consent and 24-hour wait period) make it difficult for a woman to seek an abortion.
In the 1980s, Pennsylvania passed a law that created hurdles for women to get an abortion. Like 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.”
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. This brings us to...
So far this year, more than 545 abortion restrictions have been intro’d in 42 states. In March, Idaho’s governor signed a bill banning abortion after six weeks of pregnancy. Florida's 15-week abortion ban is set to go into effect in July. And Missouri lawmakers passed a bill in April that would criminalize mail-order abortion meds, among other things. Here's a look at what legislation is taking shape in each state. But a few states in particular have been dominating the headlines…
The Sooner State has three major anti-abortion bills in the works. Surprising no one, since Gov. Kevin Stitt (R) wants Oklahoma to be "the most pro-life state in the country." Here's what state lawmakers and the governor have been working on...
On May 19, the Oklahoma legislature took it a step further — prohibiting abortion after fertilization. Making it the nation’s strictest abortion law (yet). It also lets private citizens bring civil suits against anyone who “aids or abets” an abortion. This bill does provide exceptions for medical emergencies. As well as instances of rape, incest, or sexual assault reported by law enforcement. The governor is expected to sign it. And it would go into effect immediately.
On May 3, Gov. Stitt signed off on a bill that follows Texas' abortion restrictions — banning the procedure after six weeks. (Note: before many women know they’re pregnant.) With no exception for rape and incest. It also encourages citizens to sue anyone who performs or helps someone get an abortion. The law went into effect right away.
On April 12, Gov. Stitt signed a bill into law that makes providing an abortion illegal. Unless it’s “to save the life of a pregnant woman in a medical emergency." Also with no exception for rape or incest. Anyone who’s found guilty of performing one could face up to 10 years in prison or a fine up to $100,000. It's set to go into effect in August.
These measures are considered a major blow for abortion rights advocates and those seeking the procedure. Including those in Texas. Since the Lone Star State enacted strict abortion laws last year, Oklahoma has become one of the biggest out-of-state abortion destinations for Texans. With Oklahoma’s new law, many women in the South will have to travel further for care. And it places a greater strain on facilities in other states.
In 2018, Mississippi’s Republican-led state legislature passed a law that banned most abortions after 15 weeks. Lower courts ruled against it, saying it goes against the Supremes’ precedent with Roe v. Wade. But Mississippi urged the court to overturn Roe v. Wade, calling the ruling “egregiously wrong.” (Remember those words, they'll come up later.)
The case made its way up to the Supreme Court. Justices heard arguments back in December. And suggested they were ready to discard the standard.
Now, it appears that the justices are set to side with Mississippi. Justice Samuel Alito echoed Mississippi's court in the drafted opinion and wrote “Roe was egregiously wrong from the start.” And Justice Clarence Thomas plus all three of President Trump’s appointed justices voted ‘yes’ to overturning Roe v. Wade, according to the leaked doc.
But remember: SCOTUS’ decision isn’t final until it is published — which could likely happen in the next month or so. In the meantime, lawmakers could still pass legislation to codify Roe v. Wade (aka make it federal law).Learn more about what they could do here.
In Sept. 2021, Gov. Greg Abbott (R) signed a law that bans abortions after a fetal heartbeat is detected. No exceptions for cases of rape or incest. It also 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. The patient getting an abortion can’t be sued.
Since the law took effect, abortion providers have seen visitations plummet. And reports have shown the impact the law has had on women there: causing them to travel far out of state (like Oklahoma, previously) to get the procedure done. Or turn to abortion-inducing meds. One physician even publicly spoke out on why he violated the law. (Note: he has since been sued by two people, and neither of them live in Texas.)
After a back-and-forth between federal courts, the Department of Justice turned to the Supremes to take action. To this day, the high court has refused to block the law. Instead, it’s allowed lower courts to decide its fate. And on March 11, Texas' Supreme Court (made up entirely of Republicans) rejected the federal challenge on the ban. Meaning: Private citizens are effectively encouraged to report providers suspected of breaking the law.
If Roe v. Wade were overturned, abortion policy would fall to states. And some states have trigger laws that would automatically outlaw abortion. People living at or below the poverty line would be most affected since data shows that the majority of people who get abortions are poor or low-income and can’t afford to travel as far for the procedure.
Meanwhile, the federal gov is hoping to make some changes to abortion rights, including…
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 in May, Senate Republicans blocked the bill. Leaving many wondering what Biden and his administration are going to do next.
The filibuster: Ending it in the Senate may be liberal lawmakers’ last hope for codifying Roe v Wade. Since the Senate is tied, ending the filibuster would mean Democrats would only need 51 votes (instead of 60) to pass laws. Learn more about if this could actually happen here.
2022 isn’t just an important year because of the potential SCOTUS ruling — there are also the midterm elections. And, surprise: Abortion is expected to be a key issue. As we said, depending on how the bench officially 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 make a difference. Whether they’ll be voting on abortion legislation or confirming a president’s Supreme Court justice nominee. (Think: Potentially influencing the court’s future rulings on similar cases.)
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 make it out to be.
Updated on May 19 to reflect Oklahoma’s latest abortion legislation.
Update on May 3 to add details about the Supreme Court’s leaked majority opinion draft.
Skimm'd by Macy Alcido, Maria McCallen, Kamini Ramdeen-Chowdhury, and Clem Robineau
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