With Roe Gone, Here’s How to Save Abortion Rights

7 minute read
Kay is a human rights lawyer who argued against Ireland’s ban on abortion before the European Court of Human Rights and the co-author of Controlling Women: What We Must Do Now to Save Reproductive Freedom.  

The Supreme Court confirmed what was long suspected: Roe v. Wade is dead. No time for mourning, let’s get to work on what we must do to save our fundamental reproductive rights.

First, let’s take a moment to unpack the Court’s ruling. An ultra-conservative Supreme Court majority has abolished the federal constitutional protections for abortion rights. There is no longer a floor for abortion rights. There are no longer any limitations on how far a state can go to restrict or prohibit abortion.

Justice Alito’s majority opinion claims to be simply returning the decision about whether to criminalize abortion into the hands of state legislators to make law for women and girls within their borders. Justice Kavanaugh adds that the constitution is “neutral” on the abortion issue. But this blatantly ignores the Court’s historic and central role as protector of our fundamental rights.

Policy analysts predict that as many as 26 states will now outlaw abortion, half of which may be effective immediately. Vast abortion deserts will exist nationwide. We can expect to see a disproportionate number of women of color subjected to criminal charges related to pregnancy.

Justice Alito’s opinion shamelessly reverses direction on decades of Supreme Court precedent that had moved to curtail sex and gender discrimination and recognize greater rights for women and LGBTQ+ individuals. In doing so it puts at risk a whole family of privacy rights cases, including Roe’s jurisprudential cousins that protect the right to contraception and marriage equality. As the dissenting opinion by Justices Breyer, Sotomayor and Kagan notes, the majority telling us “not to worry” about the eradication of abortion rights, is like someone “telling you that the Jenga tower simply will not collapse.” Indeed.

The Court shows its true colors when it ruminates that it is “hard for anyone —and in particular, for a court — to assess…the effect of the abortion right on society and in particular on the lives of women.” Really? Stop any woman on Main Street, USA or in any college dining hall and I’m pretty sure she could easily tell you the importance of legal abortion to her well-being and her ability to control her own destiny.

The right to access abortion is at its core about controlling whether, when and with whom to have a child or not. It is a human right that is essential to a person’s dignity, bodily autonomy and freedom from sex discrimination. As the dissent aptly notes, the majority’s opinion “reveals how little it knows or cares about women’s lives or about the suffering its decision will cause.”

Fortunately, the Court majority opinion is a minority viewpoint in our country. The most recent polling data show that 66% of Americans do not want Roe to be overturned. And that number has grown since the Dobbs draft was leaked last month.

Let’s pull ourselves up by our pantsuits and get to work.

First, this election season we all need to vote to elect bold and inspired federal, state and local officials who will act with urgency to facilitate access to abortion. Protecting abortion rights does not require every red state to turn blue and we can’t be party purists. In every debate or candidate meet-and-greet, ask the candidate to say what they will do now, proactively, to protect reproductive health and well-being.

Read More: The Future of Abortion After Roe

The midterm elections for Congress are an obvious first step: gaining an abortion rights majority in the Senate would allow passage of the Women’s Reproductive Health Act. Yet there is no exclusively federal solution, state and local elections matter, too.

Governor races nationwide will be key to expanding abortion rights. We have the opportunity to elect a six-pack of women with demonstrated leadership in expanding reproductive freedom: in Michigan (Governor Gretchen Whitmer), Georgia (Stacey Abrams), Massachusetts (Attorney General Maura Healey), Maine (Governor Janet Mills), Kansas (Governor Laura Kelly) and New York (Governor Kathy Hochul). Let’s add Pennsylvania Attorney General Josh Shapiro and Wisconsin Governor Tony Evers as honorary members of this necessary-governors club.

Regardless of where you live, support candidates in key elections nationwide and at all levels. In Texas’ Attorney General contest, Rochelle Garza has a good chance to beat Ken Paxton if we grace her with our dollars, postcards and phone calls. On the local level, in Hennepin County Minnesota, candidate for County Attorney Saraswati Singh speaks passionately about prioritizing police accountability and prosecution of violent crime rather than locking up women who take their health care into their own hands. Praise-worthy prosecutors from Virginia, Michigan and Austin, Texas likewise have stood up to declare that they will not enforce unjust laws criminalizing pregnant people and those who help them end a pregnancy. These candidates if elected, will have a ripple effect of preserving reproductive freedom for many.

Next we need to help women from states whose legislators are banning abortion: send lawyers, pills, and money. We need lawyers to defend the women, girls, pregnant people, and those who help them when they are faced with criminal charges. Medication abortion pills are needed to safely end a pregnancy without resorting to back-alley abortions that were prevalent during the pre-Roe years. The FDA can help by easing medically unnecessary restrictions on these vital medicines.

Money is key to support those who are forced to migrate for abortion services. Non-profit abortion funds such as Access Reproductive Healthcare Southeast, Women’s Reproductive Rights Access Project, and Brigid Alliance assist with medical fees, lodging, transportation, childcare, and other travel expenses. They will all need infusions of private philanthropy and public funding now more than ever.

Blue states facing the swell of abortion refugees’ arrival must immediately expand their number of available abortion facilities. Allowing urgent care clinics or, as California already has, mandating public university health care services, to make abortion services available, is key. Permitting certified nurse midwives and physician assistants to offer medication and surgical abortion – as a handful of states already permit — will go a long way to easing the shortage of physicians and can reduce costs. State governments including New York and California have provided public funds to assist people traveling for abortions; effective models that should be replicated.

In the streets and in the corporate board rooms we must work to remove the stigma of abortion and frame it as the pressing human rights issue it is. The call to acknowledge abortion as a human right is what has worked in Ireland, Argentina, Mexico, Colombia, and countries worldwide where the Green Wave of activists has successfully decriminalized abortion. Here in the U.S., the reproductive justice movement, founded by women of color in the 1980s, has decades of experience in advancing abortion as part of a package of rights to have and raise children in safety and with adequate resources. It’s time all of us joined in speaking loudly and proudly about what abortion means to us, our freedom, our lives, and our loved ones.

Now is not a time to bemoan what we’ve lost but to get to work to build back better, and fairer, access to true reproductive freedom.

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