Abortion rights in the USA: regression against the tide
Content warning: this article contains references to sexual abuse and gender-based violence.
Bucking the global trend of growing recognition of abortion rights, the US Supreme Court’s overturning of Roe v. Wade reversed a ruling that for almost 50 years enshrined women’s right to choose. This setback is part of a broader ultra-conservative backlash, driven by religious fundamentalists who have conquered institutional spaces despite failing to shift public opinion. Women’s rights organisations in the USA are being aided by peers across the region, learning from their experience in both navigating abortion bans and pushing for legalisation. They are resisting the attempt to take them back to a past where women were denied status as holders of rights.
The US Supreme Court’s ruling – in a case involving Mississippi’s last abortion clinic and the government of Mississippi, one of many state administrations that have recently moved to restrict abortion – effectively overturned the landmark 1973 Roe v. Wade decision that for almost 50 years protected the right to abortion in the USA.
The decision – known as the Dobbs ruling – left abortion regulations up to each of the USA’s 50 states. In 13 states that had already introduced ‘trigger bans’ – designed to take effect if Roe was overturned – this meant abortion would be banned within 30 days. In at least eight the ban went into effect on 24 June, the day of the Dobbs ruling. In Texas, clinics stopped performing abortions the minute the ruling was announced. Wisconsin automatically reverted to highly restrictive and vaguely phrased 19th century laws.
The movement to strike down Roe v. Wade has achieved its aim without changing public opinion in the slightest. It’s done so by capturing positions of power, from the state level to the Supreme Court.
Several states in which anti-abortion legislation had been blocked by the courts are expected to try again. Overall, at least 26 states are expected to have banned or severely restricted access to abortion within a couple of months.
More than half of US women of childbearing age will likely have to travel long distances across state lines to get an abortion, resort to self-managed abortions, or – if they lack the resources, knowledge and connections – be forced to carry unwanted pregnancies to term. There are likely to be tens of thousands of these in the coming years.
Sanctuaries vs deserts
Ever since the draft opinion written by Justice Samuel Alito leaked in early May, both sides have been preparing. Abortion clinics in Republican-led states with trigger laws braced for bans taking effect, while those in Democratic-led states planned to expand to help out-of-state patients. Legislators vowed to either pass or combat legislation to protect or ban abortion in their states. Some went further, putting constitutional amendments on the ballot, some to protect abortion rights and some to do away with them.
Around 58 per cent of US women of reproductive age live in states hostile to abortion rights and barely 38 per cent live in states that have demonstrated support. Supportive states, including California, Colorado and New York, are seeking to make themselves safe havens for out-of-state abortion seekers, increasing funding and capacity, ensuring privacy and offering legal protections to out-of-state patients and doctors. But between them, the states still offering abortion will likely be unable to meet the additional demand from women living in anti-abortion states.
The demise of Roe v. Wade is not just powerfully symbolic: it is also having immediate practical effects on millions of women, girls and pregnant people. The laws that are coming into effect are of the kind that not long ago were considered too drastic even by anti-abortion advocates. Most do not include exceptions for rape and incest, and are intended to force raped girls as young as 10 to give birth. Experts warn that pregnancy-related deaths are likely to rise.
Even exceptions for the sake of saving a mother’s life tend to be vague, to the point doctors will likely hesitate to apply them for fear of losing their licences – or worse.
Louisiana, a state with a trigger law, leads the way in criminalising doctors involved in abortion care – imposing jail sentences of up to 15 years, as well as fines of up to U$S250,000. This has the potential to create ‘maternal care deserts’, as obstetricians choose to practice in places where they don’t risk extreme civil and criminal penalties just for doing their jobs.
As hostility continues to mount, abortion providers fear for their lives. The National Abortion Federation, which monitors violence against abortion clinics, recorded a steep rise of instances of aggression in 2021.
Abortion bans will worsen inequality. Wealthier people will have the resources to navigate this changing landscape, including by travelling to states where abortion continues to be legal. But those on lower incomes will be much worse affected. Abortion bans will disproportionately affect younger, poorer people of colour, in a country that already has by far the highest maternal mortality rate of any advanced economy, and where Black people are already 3.5 times more likely than white people to die due to pregnancy and childbirth.
The end or the beginning?
The current US Supreme Court may well be the most lasting and damaging legacy of the Trump administration – tilted towards the extreme right, thanks to three appointments by a president who never had majority support, potentially entrenching minority rule for decades.
Gallup, which has been polling public opinion on abortion since 1975, currently puts the number of US people who think abortion should be entirely illegal at its historical lowest, a mere 13 per cent. While 39 per cent think of themselves as ‘pro-life’ and 55 per cent consider themselves ‘pro-choice’, an overwhelming 85 per cent think abortion should be legal in at least some circumstances.
The movement to strike down Roe v. Wade has achieved its aim without changing public opinion in the slightest. It’s done so by capturing positions of power, from the state level to the Supreme Court. The Court’s decision to devolve the issue to states puts control in the hands of political structures that in many cases, thanks to tactics such as gerrymandering and voter suppression, are increasingly distanced from the views of most people.
The Dobbs ruling is no isolated judgment but part of a wider ultra-conservative backlash, as attested by a string of recent Supreme Court decisions eliminating restrictions on carrying concealed guns, eroding the separation of state and church by allowing prayer back in public schools and permitting religious symbols in public buildings, allowing racial gerrymandering and limiting the Environmental Protection Agency’s ability to restrict greenhouse gas emissions from power plants. On crucial issues – abortion rights, climate change, gun control – the Supreme Court is running against the tide.
It isn’t over yet. The majority opinion in the Dobbs ruling argued that abortion rights were insufficiently rooted in history to hold up; constitutional guarantees to other rights grounded in the same logic as Roe, such as contraception and same-sex marriage, could be next to go.
Emergency contraception – the so-called morning-after pill – is already under attack in many states, along with birth control methods that are being considered as akin to abortion.
If only rights deemed to be sufficiently grounded in history are going to count, then many of the rights people take for granted are at risk, along with the idea that motivates civil society: that human rights can and should be enhanced and extended over time.
Judging by the ‘legal authority’ of Justice Alito’s choice – a 17th century judge who presided over a witchcraft trial and sentenced two ‘witches’ to death – the Dobbs ruling harks back to a time when women were designated as either property or witches.
Against the tide
The Dobbs ruling has global implications: outside the USA, and particularly in African and Latin American countries where abortion is illegal in most cases, it can only inspire and embolden anti-rights groups. The argument that abortion rights are not grounded in US traditions and history particularly resonates with anti-rights forces around the world, which portray the denial of rights as culturally rooted and sexual and reproductive rights as foreign impositions. It’s also clear to abortion rights advocates around the world that anti-rights forces won’t stop at abortion but will attack women’s and LGBTQI+ rights across the board.
But however strong its regressive wave, the USA is moving against the tide. And in doing so, it isn’t in the best company: it’s one of only four countries – along with El Salvador, Nicaragua and Poland – that are reducing rather than expanding abortion rights.
Since the mid-1990s, over 50 countries have enacted laws expanding abortion rights. Some of these moved from absolute bans towards exceptions to save a pregnant person’s life or preserve their health. Others now allow abortion on broad social or economic grounds, amounting to almost complete decriminalisation. Some 22 countries on all continents have recognised the right to abortion on demand.
In Europe, while regressive trends are undoubtedly at play, led by Poland, there has been a strong response to defend rights. In the European Parliament, the Renew Europe Group – a liberal, pro-European political grouping – has requested an amendment to the European Union Charter of Fundamental Rights to include safe and legal abortion, access to contraceptive methods and supplies, information on contraception and sex education. In France, in reaction to the ruling, there is a move supported by the parliamentary majority to enshrine abortion rights in the constitution.
ABORTION RIGHTS: GLOBAL TRENDS
Source: Center for Reproductive Rights
Hundreds of thousands took to the streets across the USA in response to the Dobbs ruling. Although protests were overwhelmingly peaceful, multiple states saw incidents of police violence. In Arizona, police wielded batons, forcibly removed protesters from public spaces and fired teargas. Over two dozen protesters were arrested in New York and six were arrested in South Carolina following a clash with police that left some injured. In Cedar Rapids, Iowa, a pickup truck ploughed through protesters, leaving a woman hospitalised.
Solidarity took many forms. Abortion rights supporters posted messages offering people a place to stay if they need to go out of state. Women recommended their contacts delete period tracking apps in fear that data collected by the apps could be used against them in a criminal case in states where abortion became illegal.
Many reacted by donating to local abortion funds that help people get the abortions they need. Others joined informal networks of women helping women access abortion. Efforts increased to combat the extensive disinformation about sexual and reproductive health in circulation.
Women’s rights organisations embraced a variety of strategies, including becoming an ‘abortion travel agency’, helping women cross state lines and covering costs while combatting attempts to enact laws aimed at obstructing such movement. They worked to supply extra doctors to states where abortion is legal to keep up with the growing demand, and are fighting to make abortion pills more widely available, including by pushing to have them approved for over-the-counter sale.
Self-managed abortions are not what they used to be: they no longer evoke images of coat hangers and back alleys, but rather of a small white round pill.
Abortion medication – two pills that have to be taken 24 to 48 hours apart, containing two drugs, mifepristone and misoprostol – experienced a boom under the pandemic that is likely to continue. The medication is approved by the US Food and Drug Administration as safe and effective during the first 10 weeks of pregnancy. Generic versions of the drugs are available and they don’t need to be taken under medical supervision.
While some states have tried to ban abortion pills from being prescribed or shipped within state, they can be ordered from online overseas pharmacies. Foreign clinics also offer prescriptions and shipping, including ‘advance provision’ prescriptions so that people can stock up in case they or somebody else needs them in the future. States may try to police mailed pills, but given privacy provisions and the sheer volume of mail, they are likely to fail.
For decades, Roe v. Wade was a beacon guiding women’s rights activists around the world, particularly in the Americas. Its light has gone out, but women’s movements in the region have already found their own path, with legal abortion pioneered by Uruguay in 2012, followed by Argentina in 2020, Mexico in 2021 and Colombia in 2022.
Latin American feminists have plenty of experience supporting women to get abortions in contexts where they’re illegal, and are sharing with their northern counterparts their learning in both navigating abortion bans and fighting for legalisation.
In January 2022, the Cross-Border Network was born, formed by dozens of women’s rights groups in Mexico and the USA, aimed at – in the expression widely used by Latin American feminists – ‘accompanying’ US women, initially mostly Texans, through self-managed abortions, welcoming those who can cross the border and mailing pills to those who cannot.
US abortion rights activists have lost a battle, but by no means have they lost the war. Women in the USA, as elsewhere, are certain they are subjects of rights, won’t accept a return to a past where they were not, and won’t rest until they get back what’s rightfully theirs.
OUR CALLS FOR ACTION
The Democratic Party should take steps to codify the rights previously enshrined in Roe v. Wade into federal law.
President Biden should take action to safeguard access to medication abortion and emergency contraception and to ensure the right to travel out of state to get abortion care.
Latin American and US abortion rights campaigners should share support and resistance strategies and boost the movement across the region.
Cover photo by Mario Tama/Getty Images