The Supreme Court overturns Roe v. Wade

On June 24, 2022, the U.S. Supreme Court overturned Roe v. Wade in the decision on Dobbs v. Jackson Women's Health Organization, ending the right to abortion that had existed since 1973.

Nina Totenberg and Sarah McCammon review the new law for NPR (https://npr.org/2022/06/24/1102305878/supreme-court-abortion-roe-v-wade-decision-overturn). Here are excerpts and comments from their analysis.

“The decision, most of which was leaked in early May [2022], means that abortion rights will be rolled back in nearly half of the states immediately, with more restrictions likely to follow. For all practical purposes, abortion will not be available in large swaths of the country. The decision may well mean too that the court itself, as well as the abortion question, will become a focal point in the upcoming fall elections and in the fall and thereafter.”

Concurring with Justice Samuel Alito 78-page decision were Justice Clarence Thomas, appointed by the first President Bush, and the three Trump appointees — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Chief Justice John Roberts, appointed by President George W. Bush, concurred in the judgment only, and would have limited the decision to upholding the Mississippi law at issue in the case, which banned abortions after 15 weeks.”

“Dissenting were Justices Stephen Breyer, appointed by President Clinton, and Justices Sonia Sotomayor and Elena Kagan, appointed by President Obama. They agreed that the court decision means that ‘young women today will come of age with fewer rights than their mothers and grandmothers.’ Indeed, they said the court's opinion means that ‘from the very moment of fertilization, a woman has no rights to speak of. A state can force her to bring a pregnancy to term even at the steepest personal and familial costs.’"

What did Roe v Wade say?

Elizabeth Dias and Lisa Lerer point out that there were nine men on the Supreme Court in 1973, all of whom ruled in favor of abortion rights (The Fall of Roe: The Rise of A New America (publ. 2024).

“A woman in America had the right to get an abortion until a fetus could live separately – a point the court called viability – which at the time was about twenty-eight weeks into pregnancy. They could make private decisions about her pregnancy with her doctor, without interference from anyone else” (p. 12).

The Catastrophic effects after “the fall of Roe”

Millions of women are affected

Dias and Lerer write that “On June 24, 2022, there were about 65 million women of childbearing age in America. Within two months of the decision, about one-third – 20.9 million – would live in states where abortion was a criminal act” (p. 356). Here are some other facts from their book.

The effects on women and girls

The Center for Reproductive Rights – “argued that women who are denied the ability to end a pregnancy face greater health risks and lost education and career opportunities” (p. 315)

The effects of racism on black women

“The higher abortion rate of Black women was not because of a nefarious plot by abortion providers. It was due…to structural racism and a raft of socioeconomic factors that made Black women disproportionately at risk for unintended pregnancy. Studies showed that Black women were less likely to receive sex education, more likely to live in ‘contraception deserts,’ and uninsured at roughly twice the rate of white women and girls – making it difficult to obtain contraception” (p. 267)

Americans divided on the ruling

Support - A majority of Americans support access to abortion without any or with only some restrictions, and they still do. Dias and Lerer point out,

“A majority of Americans accepted Roe v. Wade as settled law and supported legal abortion. Many Americans backed some restrictions on the procedure, although disagreed on what those limits should be. But only 16 percent of Americans believed abortions should be illegal in all circumstances, and just another quarter believed it should be illegal in most circumstances” (p 12). And “…a whopping 85 percent of Democratic women now thought abortion should be legal in all or most cases, up eighteen points from March 2026 before Trump claimed his party’s nomination” (p. 172).

Dias and Lerer also note, “Not a single state had a majority of adults that favored overturning Roe. Even in Mississippi, only 40 percent agreed with the court’s decision” (p. 376).

Opposed

Catholics and right-wing Evangelicals

Dias and Lerer provide some background. A small group, led by Roman Catholics and soon joined by the conservative evangelicals of the nascent religious right, never accepted the roe decision as settled law” (p. 13). Such views were held by an array of right-wing groups and people.  “Every town seemed to have a church with an antiabortion pregnancy ministry, or a Catholic school that annually sent teenagers to Washington for the March for Life, or a Baptist pastor who preached against the sin of abortion” (p. 13).

At the same time, Dias and Lerer point out, “Catholics in the United States were divided on abortion, with polling showing them nearly evenly split between supporting and opposing abortion rights” (p. 113). They also remind readers that Catholic theology “was not always static – for centuries, the church taught that the soul entered the fetus only later in pregnancy, but in 1869, as the scientific revolution took hold, the church decreed that a human life begins at conception and expressly forbade abortion at any stage of pregnancy (p. 113).

Shefali Luthra informs us in her book, Undue Burden: Life and Death Decisions in Post-Roe America (publ. 2024) that many Catholics supportive of some access to abortion. She writes: “Only days after the court decision, data collected by the Public Religion Research Institute indicated that the majority of American Catholics – 64 percent of White Catholics and 75 percent of Hispanic Catholics – said they supported access to abortion in most or all cases” (pp. 101-102).

The fetus and pain, a false assumption

Those who espouse an anti-abortion view often believe that at any stage in a pregnancy the embryo/fetus has a “soul” or is a “person” requiring the protection of the government and courts.

Dias and Lerer write, “The American College of Obstetricians and Gynecologists, the main association for ob-gyns in the United States, pointed to research showing that a fetus could not perceive pain until perhaps the third trimester. But the antiabortion movement used the still-evolving and disputed science to point out doubt” (p. 56)

Leonard Leo

Dias and Lerer describe the important role played by Leonard Leo in building the anti-abortion movement. Leo was involved in the Federalist Society, established in 1982, “with the goal to train, credential, and grow a generation of conservative lawyers who could ascend to the highest levels of American government, academia, and the judiciary, even the Supreme Court” (p.106).

Republican women

Dias and Lerer – “Across the country, Republican women made up less than 10 percent of state legislators from 2008 to 2017, but they were significantly overrepresented as sponsors of antiabortion bills, according to an analysis of the period. Of the more than 1,600 antiabortion bills that were introduced during this stretch in state legislatures, nearly half had a female Republican cosponsor, and a third had a female Republican as the primary sponsor” (p.208).

More states are Republican controlled

Dias and Lerer – “Since 2010, Republicans had dramatically expanded their power in the states. They now had unified Republican control of state governments in twenty-three states. Democrats held only fourteen. Their party controlled thirty governors’ mansions, nearing their all time high in modern political history, in the 1920s” (p. 14). In 2011, “Republican statehouses pushed through a whooping ninety-two new restrictions on abortion, more than in any previous year…” (p. 16)

Chipping away at Roe and abortion rights

“For years, opponents have chipped away at abortion rights, with laws creating extensive rules for doctors, patients, and clinics that made it more difficult to get an abortion in the state” (Texas) (Dias and Lerer, p. 22)

“While Planned Parenthood remained the biggest abortion provider in the county in 2019, it wasn’t performing the majority of abortions in America. About 60 percent of abortions happened in small, unaffiliated independent clinics, which performed most of the controversial procedures later in pregnancy” (p. 253). – “The flood of state restrictions had forced more than a third of those clinics to close their doors. In 2012, when Obama was president, there were 510 independent abortion clinics, according to the Abortion Care Network, the national association of independent clinics. By 2019, their numbers were down to 344” (Dias and Lerer, p. 254).

Shefali Luthra informs us in her book, Undue Burden: Life and Death Decisions in Post-Roe America (publ. 2024) that the restrictions and extremist rules had already had unwelcome effects. Luthra writes: “Even prior to 2022, pregnancy related deaths had been on the rise in the United States, a stark contrast to other wealthy nations….In large swaths of the country, it’s impossible to find an ob-gyn within fifty miles, let alone one who accepts health insurance or who is comfortable caring for a patient with other health conditions in addition to being pregnant” (p. 53). She also refers to the Turnaway Study, which “demonstrated indubitably that when people are denied access to abortion, they are more likely to fall into poverty and then stay there” (p. 66). Luthra documents how the number of women forced to leave their state (e.g., Texas, Oklahoma, Mississippi), creating problems for abortion providers in states that had not banned or had not unduely restricted abortions. For example, “in 2022, Kansas recorded 12,318 abortions – a 57 percent increase from the year before, fueled entirely by out-of-state patients, who that year made up close to 70 percent of the people getting abortions in the Sunflower State” (p. 95).

Trump the antiabortionist

Dias and Lerer refer to Trump’s anti-abortion policies. Just weeks into his administration,

“The Trump administration announced it would ban any organization that performed or referred patients for abortions from receiving money through Title X – the federal program that pays for contraception and other reproductive health care for millions of low-income Americans. The policy change would eliminate as much as $60 million funding from the program for Planned Parenthood clinics” (p. 232). Trump added to his anti-abortion position by picking three justices who opposed abortion (p. 275). And then Trump “appointed nearly 230 judges to the federal bench, just one fewer powerful federal court judges in four years than Obama appointed in eight, and three judges to the Supreme Court” (p. 279). This was not the end. Trump also selected anti-abortionist J.D. Vance as his 1984 presidential pick.

JD Vance as vice president

Extremist

The “Democrats” website provides some information about Vance’s extreme anti-abortion position (https://democrats.org/news/%F0%9F%9A%A8-breaking-jd-vance-who-wants-abortion-to-be-illegal-nationally-says-extremists-pushing-to-ban-abortion-nationwide-have-a-seat-at-this-table). Here’s some of what it reports.

“JD Vance is leaving zero doubt about his extreme anti-choice agenda, telling the radically anti-choice Faith and Freedom Coalition they’ll ‘have a seat’ at the Trump-Vance ticket’s table less than 24 hours after audio surfaced of him admitting he wants ‘abortion to be illegal nationally.’ It’s no surprise that Vance spent one of his first speeches as the GOP vice presidential nominee pandering to an organization led by Ralph Reed – a Trump ally who backs a total abortion ban – since he’s just as hellbent on ripping away our basic rights. Every day, Trump and Vance remind us that their anti-choice Project 2025 agenda to restrict reproductive freedom is too dangerous, out-of-touch, and extreme for the American people.”

“After new reporting revealed he wants abortion to be ‘illegal nationally,’ JD Vance told far-right anti-choice extremists they’ll ‘always have a place at the table’ at a Faith and Freedom Coalition event.”

Vance: “There has been a lot of rumbling in the past few weeks that the Republican Party of now, the Republican Party of the future is not going to be a place that’s welcoming to social conservatives. And really from the bottom of my heart I would say that is not true. Social conservatives have a seat at this table and they always will so long as I have any influence in this party, and President Trump I know agrees.”

CNN: “JD Vance said in 2022 he ‘would like abortion to be illegal nationally’”

“‘I certainly would like abortion to be illegal nationally,’ Vance said in January 2022 on a podcast when running for Senate.

“During a podcast interview in January 2022, then-candidate JD Vance said he ‘certainly would like abortion to be illegal nationally’ and was ‘sympathetic’ to the view that a national ban was necessary to stop women from traveling across states to obtain an abortion.”

“Reminder: Vance has previously backed a national abortion ban AND criticized exceptions for rape or incest, calling those circumstances ‘inconvenient.’”

“Washington Post: “Ohio Senate candidate J.D. Vance argues against need for rape and incest exceptions in abortion laws”

Wants access to personal medical records, disregarding “privacy”

Julia Conley examines an example of Vance’s extreme anti-abortion stance in an article on Common Dreams, published on July 17, 2024 (https://commondreams.org/news/jd-vance-abortion-2668762874).

She cites reporting from The Lever, where MSNBC anchor Rachel Maddow warned viewers about Vance's endorsement of a request by at least 19 Republican attorneys general who asked the Biden administration to allow them access to the medical records of people who travel across state lines, including to states that allow abortion care.” Why? Maddow answers.

"They want the right to follow women from their states all over the country to see if they might be getting an abortion somewhere. or might be getting any other kind of reproductive care anywhere that they want to bring criminal charges about, so they can use those records for prosecutions.”

“Last year, Maddow added, Vance joined other GOP lawmakers in pressuring the Biden administration to withdraw a rule it introduced after the U.S. Supreme Court overturned Roe v. Wade. The rule prevents state and local police in states that ban abortion from using medical records to prosecute people who have obtained abortion care elsewhere.”

"If Donald Trump and JD Vance are elected in November, they will have the power to withdraw the Biden administration's privacy rule on this issue," said Maddow.”

Enforce the Comstock Act

Dan Diamond and Meryl Kornfield write on Vance’s efforts to have DOJ enforce the Comstock Act (https://washingtonpost.com/health/2024/07/17/jd-vance-abortion-comstock-vice-presidential-nominee).

“Sen. J.D. Vance (R-Ohio), newly tapped as the GOP vice-presidential nominee, last year joined an effort to enforce the Comstock Act, the 151-year-old federal law that has become a lightning rod in the nation’s abortion debate.

“The Comstock Act, which bans the mailing of abortion-related materials, has not been invoked for that purpose in about a century. The Biden administration maintains that its provisions are outdated today. But some Republicans have attempted to resurrect the law to limit or effectively ban abortion nationwide, a position that Vance and other lawmakers conveyed to Attorney General Merrick Garland in a January 2023 letter.

“‘We demand that you act swiftly and in accordance with the law, shut down all mail-order abortion operations,’ Vance and about 40 fellow Republican lawmakers wrote. The Republicans called on the Justice Department to potentially prosecute physicians, pharmacists and others ‘who break the Federal mail-order abortion laws,’ citing additional federal laws that apply to criminal conspiracy and money laundering.”

Writing for the ACLU on July 1, 2024, Andrew Beck delves into the issue over the Comstock Act and other abortion-related issues (https://aclu.org/publications/trump-on-abortion).

While misusing the Comstock Act is the most sweeping threat to abortion posed by a second Trump presidency, it is by no means the only one. For example, if he assumes the presidency again, Trump will attempt to eliminate medication abortion, which accounts for almost two-thirds of abortions nationwide,17 by ordering the Food and Drug Administration (FDA) to rescind approval of one of the drugs, mifepristone, used for such care.18 Anti-abortion activists recently brought a case seeking to take mifepristone off the shelves nationwide all the way to the Supreme Court. Indeed, a rabid anti-abortion judge appointed by President Trump initially did just what they asked, rescinding the approval of this medication used in most abortions in the U.S. today.19 Fortunately, in June, the Supreme Court turned these particular litigants away, finding that they did not have enough at stake to bring the lawsuit.20 But that very narrow ruling did not touch on the merits of those plaintiffs’ claims.

“Concerningly, the case has now been sent back to the lower courts and to the same anti-abortion Trump-appointed judge who initially ordered mifepristone off the market. That judge, Matthew Kacsmaryk, has already let three state attorneys general join the case,21 and they have vowed to pick up where the other litigants left off.2216

Biden administration attempts to reduce the damage

Dias and Lerer write on this. “He [Biden] rescinded the Mexico City policy, the rule blocking foreign nongovernmental organizations from providing information about abortion. On International Women’s Day, he signed an executive order establishing the Gender Policy Council, putting a longtime ally of the abortion-rights movement at the helm of a new office that aimed to protect sexual and reproductive health at home and abroad. That spring, he took steps to roll back the restrictions on Title X funding that had prompted Planned Parenthood to drop out of the programs and lose tens of millions in federal money. And after some lobbying, his first budget proposal dropped the Hyde Amendment, which banned the use of federal dollars for abortions, fulfilling his campaign promise” (pp. 284-285).

Now as Biden has withdrawn from the presidential race, his vice-president Kamala Harris may be the next Democratic presidential candidate. She is pro-choice, just as Biden is.

Concluding thoughts

There is a lot at stake in the upcoming November elections. There could not be clearer differences on abortion in the platforms of the Republicans and Democrats.

Shefali Luthra offers a fitting way to think about the future, as do the three liberal Supreme Court justices. They want something similar to Roe resurrected and write:

“…the government could not control a woman’s body or the course of a woman’s life. It could not determine what the woman’s future would be.” The liberal justices added: ‘respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over the most personal and consequential of all decisions.’ The power to determine when and how one becomes pregnant is exactly that: one of the most personal and most consequential choices someone will ever make. In many cases, it is hardly even a choice; it is a medical necessity” (p. 290).