Abortion and Its Recent Legal Battles, Skimm'd

Published on: Dec 10, 2021fb-roundtwitter-roundemail-round
Protesters hold placards in Pennsylvania during the Rally for Reproductive Rights in September 2021.Image: Getty Images | Design: theSkimm

On Dec 1, the Supreme Court heard oral arguments for the most significant challenge to Roe v. Wade in nearly three decades. The conservative-majority bench is weighing the constitutionality of Mississippi’s 15-week abortion ban. And early signs show they may uphold it —  a move that could upend 50 years of abortion rights rulings. That same month, the Supreme Court also issued a ruling around Texas’s controversial abortion ban.

Learn more about the cases below. But first, we’re Skimming the history of legal battles that shaped abortion laws in the US, and how they led to the challenges we’re seeing today — in Mississippi and beyond...

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 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…

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 of them (See: parental consent and 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. This brings us to...

Mississippi’s Abortion Case: Dobbs v. Jackson Women's Health

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.”

Abortion rights advocates are worried that the justices could side with Mississippi. And put an end to Roe v. Wade. And they might be right. After nearly two hours of oral arguments, a majority of the justices suggested they were ready to discard the standard. The specifics:

  • Justice Brett Kavanaugh questioned whether the court should have a say in the abortion debate at all. “Why should this court be the arbiter, rather than Congress, the state legislatures, state supreme courts, and people being able to resolve this?” he said.

  • But Chief Justice John Roberts — a more moderate conservative — appeared to take a narrow approach. He indicated that he would be willing to uphold Mississippi’s law while keeping Roe v. Wade in place.

  • Meanwhile, the three liberal judges warned that the court could appear political if it got rid of the precedent. Justice Sonia Sotomayor asked “will this institution survive the stench that this creates” if the Supreme Court is viewed as a political body?

SCOTUS isn’t likely to announce a decision until June 2022. While they mull over their decision, other states are working to narrow abortion rights at home. 

Status of Abortion Restrictions Passed in 2021

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 heartbeat 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. And what happens next will depend on the outcome of the Mississippi abortion case that SCOTUS will rule on.

  • 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: This year, Gov. Kevin Stitt (R) signed a number of abortion restriction bills into law, including a “heartbeat” ban like SC. Five laws were set to take effect on Nov 1. But judges blocked that from happening.

texas abortion protest
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. Note: the patient getting an abortion can’t be sued. 

Since the law took effect on Sept 1, 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.

Legally, the ban has been a rollercoaster. In early October, a federal judge temporarily halted the law, 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. The Department of Justice asked the courts to halt the law again, and turned to the Supreme Court to take action. But Texas AG Ken Paxton delivered a rebuttal — urging the high court to keep the law in place while lawsuits play out. To date, SCOTUS has refused to block the law. But it heard two challenges against the measure on Nov 1.

  • The details: The justices didn’t consider the law’s constitutionality. Instead, it looked at whether the federal gov or abortion providers have a right to challenge the law in federal court. And if the way the law is written (think: allowing private citizens to enforce the ban vs. gov officials) protects it from federal-court review. But the MS case could have a larger effect on the TX law and abortion rights, depending on the outcome.

  • Here’s what happened: On Dec 10, the justices ruled that Texas abortion providers can legally challenge the state’s ban on most abortions after six weeks. But they let the law stand, leaving it to lower courts to decide its fate.

abortion rights mississippi supreme court
Getty Images

The Future of Abortion Rights in the US

Supporters and critics of abortion alike are now eagerly waiting for the Supreme Court’s decisions on the MS case and TX cases. 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: 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 make it out to be.

Updated on Dec 10 to reflect the Supreme Court’s ruling allowing abortion providers to challenge the six-week abortion ban in Texas.

Updated on Dec 1 to include oral arguments on Mississippi's challenge to Roe v. Wade.

Skimm'd by Maria McCallen, Macy Alcido, and Kamini Ramdeen-Chowdhury


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