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The Fight for Abortion Rights in Post-Roe America

Without federal abortion protections, both the public and elected leaders must act to safeguard reproductive rights.

June 24, 2022
Abortion rights protesters at the Supreme Court
Anadolu Agency/Getty

The Supreme Court’s ruling in Dobbs v. Jack­son Women’s Health Organ­iz­a­tion is a devast­at­ing blow — for demo­cracy and the rule of law, for the 64 percent of Amer­ic­ans who believe Roe v. Wade should stand, and for the low-income women and dispro­por­tion­ately women of color who will be most harmed.

What comes next? Inev­it­ably, our work starts and ends with the ballot: voters must keep up the fight for free and fair elec­tions and mean­ing­ful repres­ent­a­tion. And we must hold our elec­ted lead­ers — from local prosec­utors, to state legis­lat­ors and governors, to members of Congress and the pres­id­ent of the United States — account­able to prior­it­iz­ing matters of repro­duct­ive health, rights, and justice. Every one of them — and us — has a vital part to play.

In the courts, there are oppor­tun­it­ies to bring to bear new argu­ments for expans­ive rights and repro­duct­ive autonomy under state consti­tu­tions. The long push to get the Equal Rights Amend­ment over the finish line could strengthen equal­ity-based argu­ments and protec­tions for abor­tion rights nation­wide. And an ongo­ing juris­pru­den­tial drive to ensure more robust consti­tu­tional guard­rails than Roe ever afforded remains essen­tial.

In the first install­ment of Ms. magazine’s Women & Demo­cracy plat­form, a project I lead, experts from the Center for Repro­duct­ive Rights and others weighed in on some of the key legal and policy fights ahead. Here are excerpts from that collec­tion, Beyond Roe: The Fight for Our Future.

The United States in the global context

Armed with human rights and global momentum, advoc­ates around the world have won land­mark victor­ies protect­ing the right to abor­tion. In 2021, the Supreme Court of Mexico issued a ground-break­ing decision, unan­im­ously recog­niz­ing a consti­tu­tional right to safe, legal and free abor­tion services in early preg­nancy and in other situ­ations. The Court’s land­mark ruling, and the inclus­ive language used in the decision, consti­tute crit­ic­ally import­ant steps towards decrim­in­al­iz­a­tion of abor­tion and its recog­ni­tion as a human right.

That same year, the Inter-Amer­ican Court ordered El Salvador to reform its legal and health­care policies that crim­in­al­ize women for seek­ing repro­duct­ive health­care. Else­where in Latin Amer­ica, Argen­tinaEcuador, and, most recently, Colom­bia have also liber­al­ized abor­tion access—what’s been called the green wave. Examples in other regions of the world include AngolaIndiaKenyaNew Zeal­andNorth­ern IrelandSouth Korea and Thai­l­and. Since 1994, 60 coun­tries have liber­al­ized their abor­tion laws. 

Here in the United States, we draw from that work to fight on—for stronger legal protec­tions in Congress, includ­ing the Women’s Health Protec­tion Act that would secure a national right to access abor­tion, as well as the Equal Access to Abor­tion Cover­age in Health Insur­ance (EACH) Act. We fight on in state legis­latures. And we fight on in the courts, a crit­ical pillar of demo­cracy which we will never cede.

 –Lourdes Rivera

Federal juris­pru­dence

Roe was never enough, espe­cially as it was constric­ted in later cases. Though Roe provides an import­ant found­a­tion for repro­duct­ive autonomy rights beyond abor­tion, the law is under­developed when it comes to the consti­tu­tional right to have a healthy preg­nancy, safely raise chil­dren and live without fear of being prosec­uted for conduct during preg­nancy or exper­i­en­cing miscar­riages or still­births. 

The 14th Amend­ment requires the govern­ment to respect—and courts to protect—the consti­tu­tional and human right to repro­duct­ive autonomy, as follows: the right to liberty, which includes the right to bodily integ­rity and to make personal decisions related to family, marriage and chil­drear­ing; the right to equal protec­tion, includ­ing from discrim­in­at­ory laws that rein­force women’s second-class status, that perpetu­ate racial inequal­ity, and that deny equal justice to low-income people; and the right to life, much like human rights treaty bodies recog­nize the connec­tion between abor­tion restric­tions and mater­nal health and mortal­ity. 

–Diana Kasdan and Risa Kauf­man 

State courts and consti­tu­tions

High courts in 11 states have recog­nized that their consti­tu­tions protect abor­tion rights inde­pend­ently from and more strongly than the U.S. Consti­tu­tion, or have struck down restrict­ive laws that the Supreme Court has upheld. These opin­ions have not only protec­ted access within the state, but also collect­ively influ­enced posit­ive decisions in other states. 

While state courts still have far to go—none have addressed the racial discrim­in­a­tion that under­girds restric­tions, for example, or considered the inter­sec­tion of preg­nancy, child­birth and secur­ity for famil­ies as part of repro­duct­ive autonomy—they have built a legal found­a­tion that goes beyond what the federal courts have allowed, includ­ing rulings rooted in funda­mental privacy rights (Alaska, Cali­for­nia, Flor­ida, Massachu­setts, Minnesota, Montana, New Jersey), equal­ity argu­ments (Alaska, Arizona, Cali­for­nia, New Jersey, New Mexico), and state tradi­tions of personal autonomy (Kansas, Montana). 

–Amy Myrick and Tamar Eisen

State advocacy

Each state has the power to ensure more equit­able access for its own resid­ents as well as anyone who travels there to access abor­tion care. Reforms can origin­ate from the voters them­selves via ballot initi­at­ives — like those under­way now in Michigan and Vermont — or through the legis­lat­ive process, whether forging new stat­utes or consti­tu­tional amend­ments. Beyond the repeal of medic­ally unne­ces­sary restric­tions and all-out bans, among the policies passed or advan­cing in real-time across the coun­try: finan­cial help for patients, either via creat­ing more public fund­ing (Oregon) or requir­ing expan­ded private insur­ance cover­age (Cali­for­nia, New York); enabling a more diverse array of providers to be trained to provide safe care (Mary­land, Wash­ing­ton); and step­ping up protec­tion for clin­ics and providers from harass­ment and viol­ence (Maine). Abor­tion rights should never depend on someone’s zip code.

–Elisa­beth Smith