In 2019, at least 20 cases are in the pipeline to go the Supreme Court in an effort to overturn Roe v. Wade, the landmark decision that legalized abortion in 1973. With last year’s appointment of Justice Brett Kavanaugh, the court currently leans more conservative, leading to hope for right-to-life advocates and worry for those who support a woman’s right to choose.
The Inquirer asked people on two sides of the debate to answer the question: Should the Supreme Court overturn the decision to legalize abortion in Roe v. Wade?
For years, antichoice activists and lawmakers have insisted the onslaught of state-level abortion restrictions pushed through state legislatures were designed to protect patients. This happens despite robust evidence that legal abortion is exceedingly safe and no evidence that such restrictions reduce the already-low complication rates.
In 2016, the Supreme Court finally had the opportunity to analyze these claims in Whole Woman’s Health v. Hellerstedt. The verdict? The justices recognized the patient-safety claims for these restrictions were bogus and ruled them unconstitutional.
The Hellerstedt loss was a big blow because it exposed the antichoice strategy was based on fraud.
Then along came Donald Trump, a reality star who bragged about grabbing women between the legs, the kind of guy antichoicers could apparently support so long as he promised to stack courts with antichoice judges.
Now, the quest to overturn Roe has reached fever pitch, and at least 20 cases are in the pipeline to go the Supreme Court in an effort to overturn Roe.
It’s worth pausing here to recognize the truth exposed by the antichoice movement’s expedient shift from focusing on state-level “patient safety” restrictions to overturning Roe.
Abortion was criminalized in the vast majority of states when the landmark 1973 Supreme Court case Roe v. Wade affirmed abortion was health care and that decisions related to it were entitled to constitutional protection.
If Roe is overturned, some states will recriminalize abortion. That means those states will no longer regulate abortion. That means the antichoice movement just spent years building an elaborate matrix of overlapping sets of strict regulations — Pennsylvania alone has at least 1,237 pages of law, statutes, and regulations governing abortion care — just to concede they don’t want regulation after all. The goal isn’t protection, it’s arrest.
Forty-six years after Roe, we have sophisticated global public health data that underscores the fact that criminalizing abortion doesn’t end abortion, it only ends safe, legal abortion for people who can’t afford travel to where it is legal. Currently, approximately 68,000 women die of unsafe abortion annually, making it one of the leading causes of global maternal mortality (13%).
If Roe is overturned, some people will successfully manage their own abortion with pills obtained through the mail or, like before Roe, by finding a doctor who honors the Hippocratic Oath despite the law. Others will not be so lucky. Every single person who can’t afford to travel to a state with legal abortion will be forced to take that risk.
Of course, wealthy and well-connected people will always be able to secure a legal safe abortion for themselves or their partners. Just ask former U.S. Rep. Tim Murphy, a “pro-life” champion who resigned after an extramarital girlfriend alleged he urged her to have an abortion.
Murphy was rightfully called a hypocrite, but the reality is that his behavior reflects the goal of the movement that once championed him.
To be sure, the antichoice movement has already successfully pushed abortion out of reach for lower-income and rural people. In the mid-1970s, Pennsylvania had approximately 145 freestanding abortion providers. Today, only 17 are left and five of those provide medical abortion only, which is approved only for people whose pregnancies are at 10 or fewer weeks.
Roe has been standing the whole time.
In retrospect, it should have been obvious the antichoice movement was not interested in protecting patients seeking abortion since they remain wholly unconcerned with patient safety in childbirth, despite their devotion to encouraging it. While the antichoice movement was focused on passing all those sham abortion restrictions, the U.S. maternal mortality rate doubled between 1991 and 2014, with African American, Native American, and Alaska Native women dying in childbirth at a rate three times higher than white women.
Carol E. Tracy is the executive director of the Women’s Law Project, a public interest legal organization focused on expanding and protecting the rights of women, girls, and LGBTQ+ in Pennsylvania and beyond. Tara Murtha is the director of strategic communications.
In 1973, seven men on the U.S. Supreme Court imposed a regime of abortion-on-demand that ignored the embryological science that confirms when human life begins while at the same time prohibiting states from functioning as laboratories of democracy. Ever since, the American body politic has been roiled by the issue of abortion. Ever since, Americans under the Roe regime have been unsettled about the idea that human rights are arbitrary rather than inalienable.
And yet, when the Supreme Court had the chance in 1992’s Casey v. Planned Parenthood decision to reverse Roe, it did something strange. While on the one hand, the Supreme Court rejected its 1973 characterization of abortion as a “fundamental right,” the justices preserved a limited right to abortion on the basis of women’s so-called “reliance” on it. The finding states: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”
To put it in plainer English: According to the Casey decision, the Supreme Court believes that for women to fully participate in society, we must rely on abortion.
As a woman who had an abortion — and regretted it — I felt pressured by societal norms to make the decision to end the life of my child. If women must rely on abortion in order to “participate equally” in society, then there is a greater problem afflicting our body politic.
Women who feel most desperately that they need abortion as a solution to their problems are themselves facing problems larger than their pregnancy. Abortion addresses the symptoms, but resolves none of the fundamental challenges women face to their empowerment. Abortion is not the solution to the problem and the Supreme Court should reverse its legalization in favor of laws that empower women without disempowering children.
I believe that a nation that discriminates against pregnant and parenting women must change. There are signs of progress, particularly in supporting women with protections from pregnancy discrimination, with parental leave, and more.
There is today a powerful network of more than 2,500 life-affirming pregnancy centers, outnumbering abortion facilities 5 to 1 across America, offering a broad range of support that addresses the structural issues that unexpectedly pregnant mothers face, and these centers offer holistic solutions that involve precisely none of the violence or self-harm inherent in the for-profit abortion industry. These pregnancy centers are innovative, community-driven, often volunteer-led initiatives to empower and support women in the face of an apathetic social and political culture.
We should celebrate these centers even as we invite our friends who believe so passionately in abortion to do better in offering a genuine spectrum of choice to women — a spectrum of choice wholly devoted to the health and well-being of every member of the human family.
I believe in a world where women are enough, where women do not have to choose between their future and their family.
And we can take heart in the fact that the mere passage of time does not settle a wrongly decided Supreme Court decision. Roe may be nearly 48 years old, but Plessy v. Ferguson, which upheld racial segregation, was 58 years old before it was reversed by the Supreme Court in Brown v. Board of Education.
Roe’s reversal will mean empowerment for women, because it will mean rejecting the false choice imposed by the Supreme Court — the false choice between success and abortion.
Catherine Glenn Foster is president and CEO of Americans United for Life.
Join legal scholars and reproductive rights experts Catherine Glenn Foster of Americans United for Life, Kathryn Kolbert of Barnard College, and Mary Ziegler of Florida State University College of Law for a timely discussion exploring the question: What does the Constitution say about reproductive rights?
Tues., Sept. 24, 6:30 p.m. National Constitution Center. $10-$40. Tickets at constitutioncenter.org.