OPINION: The fragility of Roe v. Wade shows need for new abortion rights legislation

The Supreme Court building.
(Courtesy: pxfuel)

Every time a state passes a new anti-abortion law, we inch closer to living in a reality straight from the dystopian novel “The Handmaid’s Tale.” Female reproductive rights have never been secure, particularly throughout the chaos of the Trump administration. 

Roe v. Wade was a 1973 court case that challenged a Texas law which made abortion illegal, alleging that the state laws were unconstitutionally vague and went against the plaintiff’s rights to personal privacy. However, since the Supreme Court’s landmark decision that the right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” Roe has stood on shaky grounds. 

This fundamental “right to privacy” based in the Due Process Clause of the 14th Amendment at present protects a pregnant woman’s choice to have an abortion, but that right is balanced against the government’s interests in protecting women’s health and “the potentiality of human life.” 

Blurred lines in the definition of constitutional rights, coupled with Roe’s foundational weakness as a legal opinion, have resulted in extensive legitimacy concerns. Roe may have provided the right to choose, but that right is under constant threat. By removing the right to choose from the legislative realm entirely, Roe sparked relentless debate and led individual states to pass policies designed to criminalize seeking an abortion and to make abortion harder to access, especially for low-income women. 

It’s time to bring abortion back to the forefront of legislative conversation. It’s time to move past Roe v. Wade.

Pro-choice advocates are reliant on the Supreme Court to continue to protect its validity. It’s true that a court with a Republican-nominated majority ruled in favor of Roe, but that was almost 50 years ago. Republican politicians have since successfully stacked the court with judges who believe that Roe was wrongly decided. With a 6-3 anti-abortion majority, these justices are willing to rule against it. The Supreme Court will not be the savior in the fight for women’s reproductive rights. 

Meanwhile, Roe is under attack from policymakers across the country. Texas’ most recent “heartbeat bill” is just one example of legal attempts to dismantle Roe. This law bans abortions after six weeks, which is before most women know they’re pregnant. It allows private citizens to sue abortion providers and anyone else who helps a woman obtain an abortion, essentially bribing individuals to attack women’s reproductive rights. 

Even if the Supreme Court decision on the heartbeat bill isn’t the ideal case for conservative justices to take down Roe, other opportunities are closely available. Dobbs v. Jackson Women’s Health Organization, which challenges Mississippi’s law banning abortions after 15 weeks, will begin oral argument on Dec. 1. This ban on abortions undermines the framework in Roe that claims a woman has the right to terminate before a fetus is viable, usually 22 to 24 weeks. This case enables justices to reconsider the heart of what Roe means.

While we sit wondering what the Supreme Court will rule regarding the Texas and Dobbs cases, any decision they make won’t be enough to preserve Roe. It is more likely to put it at greater risk. 

Conservative justices have ruled contrary to their personal biases in the past, but in a post-Trump political era, government decisions have been increasingly arbitrary and seemingly against all precedent. Justice Sonia Sotomayor wrote in her dissent that the court’s decision not to block the heartbeat bill was “stunning” and that “presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of justices have opted to bury their heads in the sand.”

It would be detrimental to women’s rights to put faith in Justices Amy Coney Barrett and Brett Kavanaugh going against their fundamental beliefs. 

Alarm bells began signaling a long time ago. The death of Ruth Bader Ginsburg, dubbed ‘RBG’ by her fervent admirers, signaled a devastating blow to the Supreme Court’s fading support of Roe. With every new case brought before the court, they have new opportunities to re-examine the law and overturn it.

Abortion advocates should continue to sue to stop new policies, such as the heartbeat bill, from taking effect. However, a focus should be put on implementing long-term strategies that are not hanging on such a thin thread as Roe. 

We need to stop putting all our efforts into saving Roe. While anti-abortion advocates attack the policy from every angle, its legitimacy hangs by a thinning thread. 

Make noise about abortion rights; demand that the politicians whom we voted for stick to their promises by supporting new legislation that preserves the constitutional right to abortions. This also means supporting electoral candidates committed to protecting reproductive rights. Vote more than once every four years. State and local officials implement nationally decided policies. We’re seeing individual states like Texas and Mississippi implement policies that contradict a woman’s legal right to abortion. Holding local officials accountable is a critical step to protecting what Roe intended to save.  

It’s necessary that we call for an outpouring of laws that guarantee the right to choose in Democratic-led states, at the very least. Liberals just barely hold a majority in Congress, but it remains a majority vote. 

The first goal should be to place abortion rights within the fight for fair access to health care. This includes free access to contraceptives, addressing the growing racial and socioeconomic disparities in infant and maternal mortality and providing effective prenatal care to everyone.

The current health care system is incredibly flawed, so it is crucial to address federal policies that stand in the way to women’s access to safe abortions. We should focus on appealing policies like the Hyde Amendment, which bans Medicaid funding for abortion services. Enacted in 1976, this Amendment was swift to follow the decision in Roe. 

We must stop idolizing a court decision that increasingly seems to benefit women in name only. There needs to be a line of defense ready if, or more accurately, when, Roe v. Wade falls. 

We need to advocate for new legislation that could stand strong in a post-Roe era that is quickly approaching — it’s now or never.  

Abby Loiselle PO ’23 is a Public Policy Analysis major. She is a firm supporter of women’s reproductive rights. 

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