US Supreme Court might sabotage abortion access nationally

The conservative-majority court is now deliberating after hearing arguments on a case banning abortion after 15 weeks of pregnancy

December 03, 2021 by Monica Cruz
Protest outside the US Supreme Court in Washington D.C. during the hearings on Dobbs v. Jackson Women's Health Organization. Photo: Nicole Roussell

The right to abortion is under imminent threat as the Supreme Court begins deliberations on a case which may chart the path to overturn the landmark ruling in Roe V. Wade, which established a constitutional right to abortion in 1973. On December 1, the court heard arguments in the case Dobbs v. Jackson Women’s Health Organization, which examines the constitutionality of a Mississippi state law banning abortions after the fifteenth week of pregnancy, except in cases of medical emergencies or fetal abnormalities. The six justices who make up the conservative majority in the court have expressed favorability towards the Mississippi law, with some even suggesting that the overturn of Roe is on the table. The Supreme Court is expected to decide the case by June 2022.

Thousands of protestors hit the streets of Washington, DC on Wednesday December 1 to defend Roe V. Wade in the midst of this unprecedented attack on abortion rights. BreakThrough News spoke with Laurie Bertram Roberts, the Executive Director of YellowHammer Fund, a non-profit dedicated to funding abortion and other reproductive healthcare services for people living in Alabama and Mississippi.

“The work that we do to navigate people, just within the states that we serve … is so much work and we already cannot serve all the people that are in need.” Betram Roberts continued, holding back tears, “The fact is that we already have to put people’s abortions on hold, we already have to tell people that we can’t help them.”

The issues of “undue burden” and “viability” 

Dobbs v. Jackson Women’s Health Organization brings to question the constitutionality of state laws that prohibit abortions before a fetus is considered to be “viable” or survive on its own outside the womb, typically starting around 22 to 24 weeks of pregnancy. The issue of viability was first determined by the half century-old Roe V. Wade ruling, which deemed any state-level ban on abortions before a fetus is viable as unconstitutional.

In the 1992 case, Planned Parenthood v. Casey, the court established that states could not place an “undue burden” on women seeking abortions before fetal viability and argued that viability was an “essential holding” of Roe. Undue burden speaks to any legal restriction that may have an outsized impact on one’s right to access an abortion.

These issues played direct roles in the discussion of the Texas Heartbeat Bill, which bans abortions after only six weeks of pregnancy. The law also places a bounty on those who receive abortion and providers who offer them, awarding up to $10,000 to private individuals who file reports on others. The law went into effect on September 1 but has since been faced with many legal challenges, based on its intent to undermine abortion rights.

Right-wing pushes forward ruthless campaign to gut abortion rights 

For decades, the right-wing has mobilized to restrict and obstruct the right to abortion, particularly in the South. Its strategy has been to pass laws limiting access to abortion, like those seen in Texas and Mississippi. 2021 marked a dramatic escalation in this crusade.

An analysis by the Guttmacher Institute found that states enacted over 100 laws restricting abortion access since the start of 2021. In total, 19 states have passed restrictions, including 12 abortion bans like the Texas law. 1,336 restrictions have been passed since 1973, with 44% being codified in the past decade alone.

If the Supreme Court overturns Roe V. Wade or rules to fundamentally weaken it, 21 states have laws or constitutional amendments ready that would ban abortion. Another five states are likely to pass legislation to ban abortion soon after.

As of now, it seems the right wing, powered by religious organizations, is winning in its attempt to undermine abortion rights.

The people versus the court 

In light of these all-out attacks on abortion rights, ABC News and the Washington Post carried out a poll which showed that a majority of Americans support upholding Roe V. Wade. On the other hand, the largely anti-choice Supreme Court is down to a new low in its approval rating. Despite recent assertions by conservative justices Amy Coney Barrett and Stephen Breyer that the court is non-partisan, the discussions and decisions regarding abortion access suggest otherwise. This even drove liberal Justice Sonia Sotomayor to address public perception of the Court during Wednesday’s hearing on Dobbs v. Mississippi.

She asked, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” She continued, questioning, “If people actually believe that it’s all political…How will the court survive?”

Congress can protect Roe V. Wade gains

One way to check the powers of the Supreme Court is to codify the protections granted by Roe V. Wade and Planned Parenthood v. Casey nationally. A bill that could achieve this is already in existence: the Women’s Health Protect Act. The law would prohibit discriminatory restrictions on abortion care (i.e. enforce an “undue burden”) and protect the right to abortion prior to fetal viability.

The bill was passed by the House of Representatives in September. Currently, Democrats control the House, the Senate and the White House and as such they have a tremendous opportunity to protect the right to abortion in every state. The question that remains is will they?

At a rally on Wednesday night outside the New York County Supreme Court in Manhattan, an organizer with the Party for Socialism and Liberation called out the Democrats lack of action on this issue. Natalia Marques exclaimed, “The Democratic Party promotes itself as the champion of women’s rights, but where is their so-called resistance to these attacks on women’s rights? There is none. Women’s rights are used as bargaining chips by the Democrats.”

She continued, “The Democratic Party’s opportunism not only endangers millions of women’s lives, it also stunts the momentum in other states where communities are struggling to repeal abortion bans.”

Monica Cruz is a reporter with US-based media outlet Breakthrough News.

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