Abortion: Troubling Legal Concerns in a Post-Roe America
April 2023 | Vanessa Aponte [former] Editor-in-Chief
In 1839, someone reading a copy of the New York Sun may have noticed an advertisement addressed to married women from a physician named “Madame Restell,” claiming to have medicine that would “alleviate private difficulties” and “remove obstructions.” [1] After mailing Madame Restell a few dollars, a person would receive a powder or some pills that contained ingredients such as pennyroyal, black draught, ergot of rye, and motherwort. These ingredients sound like a recipe from Hocus Pocus, but Madame Restell was no witch. She was an abortion provider almost two centuries ago, infamously dubbed the “Wickedest Woman in New York” due to her services.[2] Despite her notoriety, Madame Restell’s practice shows just how prevalent the issue of abortion has been over time. Abortion is defined as the intentional termination of a pregnancy and, as far back as 1550 BCE, humans have managed unwanted pregnancies by obtaining abortions. [3] The Center for Disease Control (CDC) reported about 620,000 abortions in 2020, or roughly 11 abortions for every 1,000 women ages 15-44. [4] The legality of abortion in the United States used to be protected under Roe v. Wade (1973), but after the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization (2022), Americans no longer have a federally protected right to abortion under the U.S. Constitution. This new ruling upended 50 years of precedent and triggered a wave of abortion bans across the country. As abortion becomes criminalized again in many states, it is imperative to understand the history of reproductive rights in the U.S. and the troubling legal concerns that arise in a post-Roe America.
The origin of Roe v. Wade can be traced back to 1969, when Norma McCorvey found out she was pregnant with her third child. After seeking out abortion options, she was referred to Linda Coffee and Sarah Weddington. [5] These two attorneys wanted to abolish the statute that criminalized abortion in Texas, so McCorvey agreed to sign on as their plaintiff in order to sue the state of Texas. [6] Under the pseudonym “Jane Roe”, McCorvey filed a class-action lawsuit against Henry Wade, the Dallas County District Attorney at the time. Roe claimed that the law in question—which made it a crime to “procure [or attempt to procure] an abortion” except if done under a doctor’s orders for life-saving circumstances—was unconstitutionally vague and violated her right to privacy under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. [7] Meanwhile, the state of Texas asserted that there was a compelling state interest to restrict abortion in order to protect the health of pregnant people, as well as protect prenatal life from the moment of conception. [8]
Roe v. Wade went all the way to the Supreme Court, where the Court ruled 7-2 that the Due Process Clause in the Fourteenth Amendment contains a right to privacy which protects a pregnant individual’s choice on whether to have an abortion. [9] Since the Due Process Clause protects life, liberty, and property from being taken unlawfully, the abortion decision was deemed a private matter that—for the sake of liberty—should not be infringed upon. However, the Court did not grant an absolute right to privacy for pregnant individuals, which would have allowed abortions at any point in a pregnancy. Rather, the Court did agree with the state of Texas that, at some point, it had a compelling interest to regulate this right. During the first trimester of pregnancy, the state had no compelling interest in regulating abortion. During the second trimester, the state had a compelling interest in regulating abortion as it related to parental health because, at this point, the mortality rate from an abortion procedure exceeded the mortality rate from normal childbirth. [10] Regulations of this kind could include qualifications of the abortion provider, abortion facility standards, etc. During the third trimester, the state had a compelling interest in regulating abortion entirely because, at this point, the fetus has reached the threshold of viability—where it can survive outside the womb. [11] As such, the Court allowed states to ban abortions past the threshold of viability except in cases where the pregnant individual’s life was in danger. Meanwhile, Justice White’s and Justice Rehnquist’s dissents criticized the majority for their arbitrary trimester framework, which lacked constitutional foundation, and for overstepping into legislative decision-making rather than concentrating on the intent of the Founding Fathers who wrote the Fourteenth Amendment. [12] Furthermore, the dissenters' collective focus on consistent historical restrictions on abortion foreshadowed Roe’s overruling in 2022 for that precise reason.
After Roe, some states legalized abortion while others attempted to find loopholes to the ruling—many of which ended up in court. In fact, since Congress never codified Roe—meaning that the right to abortion never became federal law—this right has always been up to judicial interpretation. As such, a plethora of cases following Roe v. Wade gradually chipped away at abortion rights until Dobbs v. Jackson Women’s Health Organization (2022) completely overturned Roe. This case was brought about because of Mississippi’s Gestational Age Act, which made it a crime to “intentionally or knowingly perform, induce, or attempt to perform or induce an abortion of an unborn human being” past the 15th week of pregnancy except in cases of “medical emergency” or “severe fetal abnormality.” [13] Jackson Women’s Health Organization sued Thomas Dobbs, Mississippi’s State Health Officer, to challenge the Act’s constitutionality. The organization claimed that the state had not proven that a fetus was viable at 15 weeks and that Supreme Court precedent in Roe did not allow states to ban abortion prior to fetal viability. [14] The Mississippi Legislature, in justifying the Act, asserted that the state had a compelling interest in protecting unborn life against the dilation and evacuation procedure used in abortions after 15 weeks. [15]
As a consequence of polarized political ideologies seeping into the Court, the majority in Dobbs narrowly ruled 5-4 to overturn Roe v. Wade. The majority opinion relied on the framework from Washington v. Glucksberg (1997), where the Court held that physician-assisted suicide was not a constitutional right because it was not “deeply rooted in the Nation’s history and tradition.” [16] Applying that same standard to abortion, the Court conducted a historical analysis and found that, prior to Roe, there was virtually no legal support for such a right. On the contrary, abortion was criminalized for most of the nation’s history, even during the adoption of the Fourteenth Amendment—the exact amendment from which Roe had derived the abortion right. [17] Furthermore, the Court argued that a right to abortion was not essential to the “concept of ordered liberty” because there was no order in circumventing the legislative process. [18] In trying to strike a balance between the interests of pregnant individuals and potential life, Roe imposed a specific valuation onto the entire nation and prevented state legislators from expanding or tightening abortion regulations as their voters saw fit. Finally, the Court remained unconvinced that an abortion right was connected to the broader right of liberty, as that argument could lead to a slippery slope of justifying a right to prostitution, illicit drug use, and other illegal actions. [19] The Court’s lengthy opinion ultimately concluded that abortion was no longer a constitutional right, which allowed the Mississippi Legislature—and any other state legislature—the power to legislate abortion as it saw fit.
Although the decision to overrule Roe was narrowly divided, the ultimate judgment in Mississippi’s favor was a 6-3 decision. Chief Justice Roberts concurred with the judgment, as he felt that Mississippi’s Gestational Age Act should have been upheld but not at the cost of overturning Roe. His concurrence argued that 15 weeks gave people enough time to decide how to handle their pregnancy, so the Court could have simply overturned the viability aspect of Roe’s decision while still maintaining the right to choose. [20] While Roberts concurred because he felt the Court went too far, Justice Thomas’ concurrence did not think the Court went far enough. Thomas believed that the only rights rooted in the Fourteenth Amendment’s Due Process Clause were those that concerned procedural aspects of law enforcement and did not extend further. [21] As such, his concurrence advocated for the overturning of all cases with these seemingly-fabricated rights, including the cases which granted a right to same-sex marriage, a right to contraceptives, and a right to consensual non-procreative sexual activity — Obergefell v. Hodges (2015), Griswold v. Connecticut (1965), and Lawrence v. Texas (2003), respectively. [22]
While the majority opinion assured that no other rights were at risk, the dissenters pointed out that all these rights were linked to the same framework and that, if one could fall, then so can the rest. Justice Kagan explained that abortion was rooted in the Fourteenth Amendment’s promise of liberty, as carrying a pregnancy to term undoubtedly alters someone’s life course. [23] As such, safeguarding reproductive freedom ensured that pregnant individuals were not deprived of liberty, but rather given the opportunity to make this personal medical decision for themselves. With this majority opinion, however, states could now restrict abortion as they wished—regardless of the physical, emotional, or financial impact on the pregnant person. The dissent criticized the majority for pretending to be neutral, when in actuality “the Court acts neutrally when it protects the right against all comers” rather than allowing states to decide who has a right and who does not. [24]Ultimately, the dissent warned of the damaged integrity of the Court for overturning precedent for “no good reason” and foreshadowed the harm that would come to those attempting to exercise reproductive rights when abortion is completely criminalized in their state. [25]
Anticipating the demise of Roe, 13 state legislatures passed “trigger laws” that would immediately criminalize abortion if the Supreme Court overturned Roe. Those laws went into effect after Dobbs was announced, with some states banning abortion at the moment of conception and without exceptions for cases of rape, incest, or serious health risks to the pregnant person. [26] The penalties for violating abortion bans can be as severe as a $100,000 fine and a life sentence in prison, as well as loss of medical license for abortion providers. [27] There have also been attempts to include “bounty hunter” provisions that allow individuals to sue abortion providers and receive damages, but they were struck down due to issues of constitutionality—mainly revolving around vagueness and lack of standing. [28] While certain states have waged war against abortion, others have made it a point to enshrine the right to abortion in their state constitutions. Some states also have “shield laws” in place that provide safeguards for out-of-state patients who seek abortion services in protected states, as well as for their abortion providers within those states. Nevada’s shield law states that the governor will not cooperate with states that criminalize abortion in regard to issuing arrest warrants, surrendering information about someone’s visit to an abortion provider, or utilizing law enforcement to apprehend the individual. [29] Although shield laws certainly help, the financial burden of obtaining out-of-state reproductive care makes abortion beyond reach for many Americans, especially considering most abortion-seekers are low-income and abortions alone cost over $500—not including travel costs. [30]
In spite of this, states with abortion bans are still trying to extend those bans nationwide, criminalizing their residents for obtaining an abortion even in a different state. Idaho is the first state to attempt this so far, but its law only entails minors seeking abortions out of state. [31] Regardless, these laws have contradicting support from the U.S. Constitution, as Americans have a right to travel between states and states must respect the laws of other states while also not impeding interstate commerce. [32] There is a high likelihood that the Supreme Court may be asked to resolve this contradiction. Abortions via medication may seem more feasible considering its availability through the mail, but anti-abortion states are working to restrict that as well. Although mifepristone—the primary drug for inducing abortions—was approved by the U.S. Food and Drug Administration (FDA) back in 2000, the FDA recently created some restrictions to mifepristone’s accessibility. [33] As such, two separate lawsuits came about and required the FDA to somehow revoke its approval of mifepristone and lessen regulations regarding mifepristone’s availability. [34] Since there is a disagreement between two federal courts, the Supreme Court will likely be asked to rectify this issue as well.
Dobbs' most troubling consequence may be the confusion doctors face, which makes them hesitant to provide necessary care to pregnant patients. Physicians are so fearful of the legal recourse for performing an abortion that they wait until the symptoms are astronomically severe before providing reproductive healthcare, resulting in near-death experiences and long-term pregnancy complications. [35] Yet, the Emergency Medical Treatment and Labor Act of 1986 (EMTALA) requires medical professionals to provide stabilizing treatment in emergency situations, and violations of this federal law for the sake of statewide abortion bans are already being investigated in Missouri. [36] Amidst the legal limbo, pregnant people’s lives are at stake. Despite having good health insurance, expectant patients may be at risk for serious infections or extreme blood loss due to vague abortion bans and harsh penalties for violating them. In the worst-case scenario, a pregnant individual cannot seek medical help at all and will have to either succumb to fatal symptoms or resort to unconventional, life-threatening methods to terminate their pregnancy. Considering that the vast majority of people who obtain abortions are low-income, this future seems inevitable for anyone from an anti-abortion state wishing to terminate their pregnancy, regardless of medical necessity.
Ultimately, the Supreme Court’s ruling in Dobbs produced more problems than solutions. Not only did the decision upend 50 years of precedent, but it also gave an avenue for the Court to rescind other rights that fall under the “privacy” umbrella. Moreover, the inconsistency across states’ abortion regulations creates inequity regarding access to reproductive healthcare—even in life-saving circumstances. The most harrowing aspect of this ordeal is that statewide abortion bans only force people to either travel to a protected state, if they have the means, or resort to unsafe methods of terminating their unwanted pregnancy. Criminalizing abortion does not stop abortions from occurring. [37] Given that financial concern is the biggest reason why people seek abortions, anti-abortion states would probably see more reduction in abortions if they provided better financial assistance to pregnant individuals. Increasing the amount of paid family leave, raising the minimum wage, or establishing a universal base income are just a few solutions that would drastically improve the financial situations of expectant people. Until then, the issue may only worsen, as the Supreme Court could hear cases in the near future regarding abortion bans’ legal contradictions. That said, while this current Supreme Court majority opposes abortion, a future Supreme Court could reverse Dobbs and repeat this cycle in another 50 years. The legal future of reproductive rights remains unclear, so until Congress establishes federal legislation regarding the matter, “[states] can force [people] to bring a pregnancy to term, even at the steepest personal and familial costs.” [38]
Sources
Horwitz, Rainey. “Ann Trow (Madame Restell) (1812–1878) .” The Embryo Project Encyclopedia, August 23, 2017.
Aliano, Kelly. “Life Story: Ann Trow Lohman, a.k.a. Madame Restell.” Women & the American Story, May 17, 2023.
Potts, Malcolm, and Martha Campbell. “History of Contraception.” The Global Library of Women’s Medicine, May 2009.
Diamant, Jeff, and Besheer Mohamed. “What the Data Says about Abortion in the U.S.” Pew Research Center, January 11, 2023.
Barnard, Christianna K., "Jane Roe Gone Rogue: Norma McCorvey’s Transformation as a Symbol of the U.S. Abortion Debate." Women's History Theses. May 2018.
Ibid.
Roe v. Wade, 410 U.S. 113 (1973).
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
MS Code § 41-41-191 (2018)
Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022)
Ibid.
Washington v. Glucksberg, 521 U.S. 702 (1997)
Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022)
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Jiménez, Jesus, and Nicholas Bogel-Burroughs. “What Are Abortion Trigger Laws and Which States Have Them?” The New York Times, June 24, 2022.
Damante, Becca, and Kierra B. Jones. “A Year after the Supreme Court Overturned Roe v. Wade, Trends in State Abortion Laws Have Emerged.” Center for American Progress, June 15, 2023.
Ibid.
SB 131, 82nd Session (Nevada 2023).
Diep, Karen, Usha Ranji, and Alina Salganicoff. “Key Facts on Abortion in the United States.” KFF, May 11, 2023.
Hanna, John, and Geoff Mulvihill. “Next Abortion Battles May Cross State Borders.” AP News, April 10, 2023.
Ibid.
Sobel, Laurie, and Alina Salganicoff. “Q & A: Implications of Two Conflicting Federal Court Rulings on the Availability of Medication Abortion and the FDA’s Authority to Regulate Drugs.” KFF, April 8, 2023.
Ibid.
Simmons-Duffin, Selena. “Doctors Who Want to Defy Abortion Laws Say It’s Too Risky.” NPR, November 23, 2022.
Meyer, Harris. “Hospital Investigated for Allegedly Denying an Emergency Abortion after Patient’s Water Broke.” KFF Health News, November 1, 2022.
Biggs, M Antonia, Heather Gould, and Diana Greene Foster. “Understanding Why Women Seek Abortions in the US.” BMC Women’s Health 13, no. 1 (July 5, 2013).
Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022)