This weekend marks the 49th anniversary of Roe v. Wade, the landmark Supreme Court decision that protects the right to abortion. It could be the last time reproductive rights advocates celebrate the anniversary of Roe — next year, they might be looking back at the law in memoriam.
The upcoming Supreme Court decision in Dobbs v. Jackson Women’s Health Organization weighs heavily on this year’s anniversary, which falls on Saturday. The case centers around a Mississippi law that bans abortion at 15 weeks of pregnancy — a direct contradiction to Roe, which made it a constitutional right to access abortion until a fetus becomes viable at around 24 weeks. The Mississippi law cuts that almost in half.
The Supreme Court could strike down the law, which means Roe would remain intact. But advocates and experts agree that during oral arguments last month, the court’s conservative majority signaled that it would likely uphold the law by either banning abortion outright or tinkering with the viability line. Either of those options would effectively overturn Roe — setting off a nationwide battle where some states outlaw abortion and others go to great lengths to protect it.
“I’m not sure it has hit people in this country that we are on the precipice of the court overturning 50 years of naming and reaffirming that Roe is the law of the land, that the decision to terminate a pregnancy is one tied up with your very liberty,” Fatima Goss Graves, president and CEO of the National Women’s Law Center, told HuffPost on a press call last week. “I’m not sure the public fully understands what’s at stake, but on this Roe Day, it is hitting all of us extremely hard that it could be the last.”
The decision in the Mississippi case is not expected until June, but the battle for abortion rights is already underway on the state level.
A handful of pro-choice lawmakers have passed or are working to pass abortion protections in their states. California Gov. Gavin Newsom (D) announced just days after Mississippi’s oral arguments that he planned to make his state a “sanctuary” for people seeking reproductive care by paying for travel, lodging and abortion procedures for those coming from out of state.
Earlier this month, New Jersey passed a law that codifies protections for reproductive freedom and expands the definition of who is legally allowed to provide abortion care to include midwives and advanced practice nurses.
“The United States Supreme Court is preparing to take a wrecking ball to its own precedent Roe v. Wade, and that would also demolish our case-law-based foundation here in New Jersey,” Gov. Phil Murphy (D) said at the public signing of the bill. “Neither I nor those with me today can let that happen.”
At least 15 states and Washington, D.C., have laws that explicitly protect the right to abortion, including Maine, New York, Nevada and Washington state. States such as Delaware and New Mexico have repealed pre-Roe abortion bans as a sign that they will protect reproductive rights if Roe falls. Colorado and Virginia have improved abortion coverage in health insurance plans, while Hawaii expanded the definition of who can provide abortion care, similar to New Jersey’s recent move.
Many advocates in abortion care are well aware that this might be the last Roe Day where the movement is actively fighting to protect the ruling. Next year, they could be working in a very different landscape.
“We need to watch and listen to the people who are leading the fight for abortion when they tell you that this law that may seem small is actually going to affect a lot of people,” Lindsay Rodriguez, communications director for the National Network of Abortion Funds, told HuffPost. “We can take nothing for granted at this moment. As we move toward this Supreme Court decision, it is critical that there are all hands on deck.”
Texas’ recent abortion ban — which applies after six weeks of pregnancy and deputizes private citizens to enforce it — has given the country a daunting preview of what’s to come if Roe falls. Texans seeking abortions are crossing over state lines to access care in another state; bordering states with few resources to begin with are overwhelmed or at capacity trying to accommodate the influx of patients; and those who don’t have the ability or resources to travel out of state are forced to carry unwanted pregnancies to term.
“I’m not sure it has hit people in this country that we are on the precipice of the court overturning 50 years of naming and reaffirming that Roe is the law of the land, that the decision to terminate a pregnancy is one tied up with your very liberty.”
The war to overturn Roe v. Wade has always been waged at the state level, and these attacks didn’t just pop up overnight. But the attacks have grown in number and severity over the last few years.
“This is a decadeslong battle that has been waged against abortion access in this country,” said Destiny Lopez, co-president of All* Above All, a reproductive justice organization. “We have seen hundreds of attacks almost annually in state legislatures across this country and the attacks have gotten worse, culminating in what we saw in Texas in the fall.”
Last year, the United States saw the largest wave of state-level bans and restrictions since Roe was decided in 1973. More than 400 anti-abortion measures were introduced, many of which served as test cases for the Supreme Court to overturn Roe in the event that the Mississippi law doesn’t do the job. Around 108 of those restrictions were enacted in 19 states.
At least 21 states are poised to immediately ban or severely restrict access to abortion if Roe falls, according to the Guttmacher Institute, a research and policy organization that supports abortion rights. A dozen states such as Idaho and Ohio have trigger laws that will immediately ban all or nearly all abortions if Roe is overturned. Four states, including Alabama, West Virginia and Louisiana, have added constitutional amendments declaring that their states do not protect the right to abortion in the event that Roe falls. Eight states still have pre-Roe abortion bans on the books that could once again be enforced in a post-Roe world.
Texas’ abortion law accelerated the current environment and galvanized many anti-abortion radicals on the state and federal levels. To date, at least six other states have introduced Texas-style abortion bans and lawmakers from several other states have expressed support for passing similar restrictions.
The Supreme Court’s blessing of the Texas abortion ban last month gave abortion rights advocates even more reason to believe that the high court will not protect Roe in the Dobbs case. The justices ruled that federal court challenges against the ban could proceed, but allowed the six-week ban and the enforcement mechanism to remain in effect during that time.
“Wherever we go, whether that be in Texas or Nebraska or Ohio or Kentucky or Florida … we can go anywhere now and say, look, this enforcement mechanism has survived before the Supreme Court of the United States,” Mark Lee Dickson, the architect of the Texas abortion restriction, said after the Supreme Court made its decision on the ban last month.
Between the Texas law remaining in effect and the Supreme Court signaling support for extreme restrictions like those in Mississippi and Texas, anti-abortion advocates and lawmakers have been given a signal that they’re winning — and that a post-Roe world is just around the corner.
But the fall of Roe won’t only affect abortion care, advocates say. Other civil liberties that are rooted in the 14th Amendment’s guarantee of liberty, similar to Roe, could be at risk.
“What I have said to family members in conversation is that Roe impacts more than just abortion access,” said Kat Sánchez, policy manager at Bold Futures, a New Mexico-based reproductive justice organization. “As a queer person in New Mexico, this directly impacts my partner and I and our family, including our four kids. This impacts our family and our friends. Everyone should be concerned about Roe.”
The Supreme Court’s decision in the Dobbs case will affect every American to some degree, said Goss Graves, from NWLC.
“The fight in Mississippi is the fight in Colorado, in Maine, in Michigan and in every place in this country,” she said. “The issue in front of us isn’t disconnected from the broader conversation around access to the ballot, around the state of the courts and around the rule of law. So it matters what happens in this case. It matters for our very democracy.”