Supreme Court Signals Possible End to Abortion Rights Under Roe v. Wade
Texas decision provides foreshadowing
This year, the U.S. Supreme Court will decide whether Mississippi’s 15-week abortion ban is constitutional. The decision is expected to end national legal protection for abortion care and allow states to enforce laws that prohibit abortion.
- Following arguments about the Mississippi anti-abortion rights case, the Supreme Court issued a decision that allowed Texas to continue with its six-week abortion ban and bounty-hunting scheme.
- Abortion rights advocates say the Supreme Court allowing the Texas ban to continue indicates the justices are ready to overturn Roe v. Wade.
- States already have filed copycat anti-abortion rights laws in the wake of the Texas bill.
Access to safe and legal abortion likely will end for half of America by this summer when the U.S. Supreme Court is expected to decide on Mississippi’s 15-week abortion ban, according to reproductive healthcare providers, attorneys, and leaders.
Both the Mississippi case and the Texas six-week abortion ban — which the court allowed to continue in December 2021 — will potentially lead to abortion bans in dozens of states.
“Overall, we anticipate that 26 states could quickly move to ban abortion, whether by enacting new bans or implementing bans that are already on the books and that may have been blocked in court,”1 says Ianthe Metzger, director of state media campaigns at Planned Parenthood Federation of America in Washington, D.C. “Twelve states have trigger bans that are intended to take effect as soon as the U.S. Supreme Court overturns Roe v. Wade, nine states have pre-Roe abortion bans that could be enforced, and some states even have both. Additionally, post-Roe bans that have been blocked by lower courts could be allowed to take effect. For example, federal courts have already taken up appeals on currently enjoined gestational age bans in Missouri and Tennessee, and we anticipate that more court cases could follow ahead of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization [JWHO].” (See story in this issue on the risks of banning abortion.)
Mississippi’s 15-week abortion ban is a direct challenge to Roe v. Wade. Both the Mississippi solicitor general and five Supreme Court justices — a solid majority — made statements suggesting a decision on Mississippi’s bill would end nearly five decades of abortion rights under the 1973 landmark case. (See story on what justices said about Mississippi’s case in this issue.)
Supreme Court Declined to Halt Ban
The Supreme Court’s decision to allow Texas to ban abortions after six weeks through a scheme that gives any citizen financial incentives to sue anyone they believe assisted in an abortion has effectively ended abortion rights for most Texans of reproductive age. Texas women who seek an abortion after six weeks of pregnancy must access medical care in another state or through non-legal means. For many women, this means they are forced to continue with an unwanted pregnancy because they cannot afford the time, travel, and expense of accessing an abortion out of state.
“The Supreme Court could have blocked the Texas ban, but instead closed most paths for challenging the law,” says Chelsea Tejada, JD, staff attorney for the American Civil Liberties Union (ACLU) Reproductive Freedom Project. “They blocked us from being able to take the easiest path to challenging the law and, more specifically, from challenging the law before it goes into effect to secure statewide relief so abortion access could continue. They left open suing some state officials who have licensing authority over nurses, providers, and clinics because those officials have collateral enforcement power.”
For instance, if a doctor or nurse is sued under Texas Senate Bill 8 (SB 8), then those state officials in the licensing area could issue licensing penalties, such as suspending the practitioner’s license.
“The narrow path means we have litigation to pursue,” Tejada says. “We’ll continue trying to get relief against those licensing officials, trying to get a declaration that the law is unconstitutional and block them from revoking licenses.”
But even if these lawsuits are successful, they do not stop people from suing anyone involved in a person’s abortion and collecting a minimum of $10,000 per case.
“The threat of those lawsuits remains in effect,” Tejada explains. “Even if there were providers who were willing to be sued, people are chilled from accessing care. It makes people fearful.”
The Supreme Court’s decision makes it clear abortion in Texas has not been restored, and there is no full relief that can come from the ACLU and others pursuing legal challenges.
“The messages we’re getting out of the Supreme Court seem to suggest they’re poised to overturn Roe v. Wade,” says Mimi Zieman, MD, author of Managing Contraception and president of SageMed LLC in Atlanta. “If the court wasn’t stacked the way it was, and if the justices seemed to adhere to what they said in their nominating testimony that they all considered [settled] law is important, then we wouldn’t worry as much,” Zieman says. “But listening to the arguments on the Mississippi abortion case signals they are ready to overturn Roe v. Wade.”
Copycat Legislation in the Works
Reproductive health advocates expect states will not wait for the Supreme Court’s decision in Dobbs v. JWHO, since the court allowed the Texas ban to remain in place. For example, a Missouri legislator filed a bill on Dec. 16, 2021, that mirrors Texas’ SB 8.2
“The Supreme Court has given states the green light to circumvent the Constitution through copycat laws by using this bounty-hunting scheme, all while allowing a blatantly unconstitutional law to stand,” Metzger says.
Access to legal, safe abortions is at a crisis point. “We don’t need to wait for the Supreme Court to decide on the Mississippi 15-week ban case because the court gave the green light for these schemes to go ahead,” Tejada says. “In Texas, abortion has not been accessible since August.”
FDA OKs Telemedicine Mifepristone
In a move in the opposite direction, the Food and Drug Administration (FDA) decided in December 2021 to make medication abortion available via telemedicine. (See story about FDA decision and telehealth abortion medication study in this issue.) But this will not help women in states that ban abortions and mail-order mifepristone prescriptions. Many states have enacted bans that prevent medication abortion from being provided through the mail, Tejada says.
Even with the FDA’s decision to make mifepristone available through pharmacies and by mail, not all people will have access to this convenience. Some states enacted laws that require patients to see a provider in person for counseling, ultrasounds, or other services before receiving abortion care.
“Providers have to comply with their state laws, and anyone who breaks those laws could be liable under state law,” Tejada says.
The end of Roe v. Wade will harm many Americans, says Robert A. Hatcher, MD, MPH, professor emeritus in gynecology and obstetrics at Emory University and chairman of the Contraceptive Technology Update editorial board. Hatcher also was a co-plaintiff in the 1973 Doe v. Bolton case that challenged Georgia’s prohibition on abortions.
“There will be a lot of tragic consequences for this,” Hatcher says. “There will be many people who will have their lives adversely affected by an unintended pregnancy.”
Hatcher also predicts a backlash to the end of Roe, suggesting that some states will ease their restrictions on abortions in response to tragedies of women dying from lack of access to safe abortion care. (See Hatcher’s predictions in this issue about what happens next if Roe v. Wade is overturned.)
States passed hundreds of anti-abortion rights bills in the past few years that could take effect if Roe is overturned.
“I was in the state of Georgia chamber when the anti-abortion bill was passed, and it felt like a punch in the gut,” Zieman says. “I couldn’t believe we were returning to laws that infringed on the rights of women.”
Zieman recalls OB/GYNs from her training pointing out the wards that used to be filled with women who were sick or dying from illegal abortions.
“That was common every day — to have many patients they were taking care of,” she says. “They saw women die from sepsis. To force women to have unsafe care and less optimal care is shocking.”
On Dec. 10, 2021, plaintiffs and attorneys in the case challenging SB 8 spoke about the Supreme Court’s failure to block the bill. In a media conference call, they noted the court’s decision would lead to states banning other fundamental rights recognized by the Supreme Court.3
“This is a dark day for abortion patients and providers,” said Virginia Attorney General Mark Herring, JD, who was among those who argued for the court to block Texas from enforcing the law. “It is also a dark day for anyone who cares about constitutional rights. The implication of [this] decision will be profound and will reverberate for years to come.”
SB 8 was not blocked immediately, as were other states’ abortion bans, because it was designed to prevent federal lawsuit challenges.
The Supreme Court’s 5-4 decision to allow SB 8 to continues means any state can prohibit the exercise of any constitutional right within that state’s borders if it allows the prohibition to be enforced by private lawsuits, Herring argued.
“Today, it is abortion rights under attack. Tomorrow, I have no doubt we will see copycat abortion laws in other states,” Herring said. “After that, any other fundamental right recognized by the Supreme Court can come under attack, and federal courts will be handcuffed from doing anything to stop it.”
- Planned Parenthood. New research from Planned Parenthood and In Our Own Voice shows that half of women of reproductive age could lose access to legal abortion. Oct. 1, 2021.
- St. Louis Post-Dispatch Editorial Board. Editorial: Missouri bill mimics Texas’ bounty hunter scheme to attack abortion rights. St. Louis Post-Dispatch. Dec. 18, 2021.
- Texas SB 8 press call. Dec. 10, 2021.
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