Abortion Rights: How Did We Get Here and Where Are We Going?

September 21, 2021

Pro-choice vs. pro-life. Abortion rights vs. anti-abortion crusade. The sanctity of a woman’s body vs. the sanctity of the fetus. These debates have weaved in and out of American politics for nearly five decades. Arguments have sprung up everywhere from the dinner table to the chambers of Congress about everything from morality to the logistics of fetal viability. The ever-present disagreement over abortion has a long history, but began to shift into its present form in 1973 when the Supreme Court ruled on Roe v. Wade.

In a 7-2 landmark vote, Roe legalized abortion in the first trimester of a pregnancy by citing the 14th amendment. Women’s right to choose was defended through the constitutional right to privacy. Individual states were permitted to regulate or outlaw abortion under certain circumstances beyond the first trimester, but the Supreme Court established that the procedure could be legally performed if desired. Although this precedent was set in 1973, the outlook of future policies regarding abortion is uncertain today in ways it hasn’t been in almost fifty years.

Current political and legal questions and restrictions have brought the future of Roe into question. Most recently, a new law passed in Texas, known as SB 8, acts as a near total ban on abortion in the state. The bill allows ordinary citizens to act as enforcers. Anyone can file a complaint in court if they believe an abortion has taken place, as well as bring lawsuits against those involved, such as the doctor who performed the procedure or the Uber driver who transported the patient. Whoever is found to have brought a legitimate claim to the Texas Court can receive $10,000. This not only permits but encourages the deputization of citizens and the policing of pregnant women. The law also restricts the time period during which an abortion may be performed. Terminating a pregnancy after six weeks is no longer permitted, rather than the previous cutoff of 15 weeks. It may take someone several weeks to even realize they are pregnant, let alone make further arrangements, which makes six weeks an incredibly narrow window of time.

Ironically enough, Roe struck down a previous Texas law banning abortion fifty years ago. Most contemporary issues have made gradual progress, but reproductive rights seem to be on the backslide. Abortions are being prohibited again in direct opposition to the measures established by Roe. Even a few years ago the very idea seemed unimaginable. Somehow, before the eyes of a whole nation, it went from unimaginable to farfetched, then from farfetched to plausible, and then from plausible to realistic. How did this happen? What set the stage for this law to pass virtually unobstructed? The answers are not so simple.

Attempts to circumvent Roe are as old as the ruling itself. States have enacted statutes that require waiting periods and consent from a parent or spouse before receiving an abortion. Opponents of abortion have pushed for less federal funding towards the procedure. What has followed is a seemingly unending stream of legal challenges both striking down and validating restrictions in every level of the court system. Pro-life groups rally and lobby for more significant limitations. Pro-choice groups debate them vigorously. The cycle persists.

One particularly consequential case arose in 1992, called Planned Parenthood v. Casey. Pennsylvania had enacted a law with rules restricting abortions, such as recquiring informed consent and a 24-hour waiting period before one could actually receive the procedure. It also stipulated that a minor needed the consent of a parent and a married woman needed to demonstrate that her husband was aware of her intentions. Many considered this a chance for the Supreme Court to overturn Roe when they elected to take up the case, but the ruling proved to be a mixed bag. The Court reaffirmed Roe, but most of the provisions of the Pennsylvania law were permitted to remain in place due to a new precedent regarding abortion laws. The more recent precedent read that state regulations could not inflict an “undue burden” or “a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” The decision was perplexing, to say the least. But its importance lies in the new standard it set regarding the “undue burden,” and what is considered a violation of Roe.

Both before and after Casey, challengers to abortion rights got creative when it came to finding ways to prevent abortions from taking place. The Hyde Amendment, passed in 1976, prohibits the use of federal funding, such as Medicaid, for abortions. This has had a disproportionately negative impact on low-income individuals and people of color seeking to end their pregnancies. The Partial-Birth Abortion Ban Act was upheld in 2007. This law focuses more on the procedure itself. It was the first time an abortion limitation passed without including an exception for the woman’s health. In order to further bludgeon abortion rights, there are also numberous TRAP laws, or targeted restrictions on abortion providers. These assign certain qualifications for the clinics themselves, with the clear intention of restricting access to abortions.

Although the discourse around abortion has always been contemptuous, it appeared to have a critical flare up as a top issue among voters while Donald Trump was campaigning for the presidency. Despite fluctuating opinions in the past, he ran as a pro-life candidate. During one debate, he stated that overturning Roe will “happen automatically” and he would be “putting pro-life justices on the court.” The first proclamation clearly did not come to pass, but the second has grown into reality. With the additions of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the Supreme Court, as well as dozens of Trump appointees to lower courts, the anti-abortion movement has gained a substantial amount of traction.

Trump’s anti-abortion crusade also turned the death of Justice Ruth Bader Ginsburg into a turning point not only for reproductive rights but for the overall direction of the Supreme Court. Justice Ginsburg was a staunch defender of abortion rights. By appointing Amy Coney Barrett, Trump replaced Ginsburg with a woman who is the antithesis of her, while also tilting the Court towards a 6-3 conservative majority.

What has followed in the last five years is a flurry of anti-abortion laws and indirect actions with the goal of preventing abortions in nearly two dozen states. Some of these infractions were fostered by the Trump administration. A refugee resettlement office in Texas, which had a director appointed by President Trump, put as many obstacles as it could in the paths of young women attempting to end unwanted pregnancies. In addition to innumerable under-the-radar operations like this, the amount of laws restricting abortions has increased from year to year. The Guttmacher Institute, a research organization that works to study and advance reproductive health, deemed 2021 the worst legislative year for abortion rights since 1973. By July, 90 restrictions had already been established. Arkansas and Oklahoma have almost complete bans on abortion. Other states, including Texas, have banned abortions after six weeks. There are also laws, such as one passed in Arkansas, which require a pregnant individual to receive an ultrasound picture and a description of the fetus before pursuing an abortion.

All of this amounts to an unyielding attack on reproductive rights and health, leading right up to SB 8 in Texas. What is the future of SB 8 and abortion as a whole in the United States? Where do we go from here? The answers are once again perplexing, as it would appear the country is at a crossroads.

One possible route is a sharp downhill trajectory for abortion rights in America. The primary fear among pro-choice advocates is that other states will follow the example set by Texas and pass similar laws. South Dakota, Arkansas, and Florida are already working on related bills. Some states have trigger bills, which would come into effect as a ban on abortion immediately if Roe were overturned. Four states even have constitutional amendments explicitly stating they are against abortion rights.

The future of Roe is coming into question yet again, and could be overturned within the year. The Supreme Court is set to hear a case regarding a Mississippi law that would prohibit most abortions 15 weeks into the pregnancy. This will be the first major case surrounding abortion that the Court is taking on since a strong conservative majority was established. For many, this seems like an ill omen, especially considering the Supreme Court just recently decided not to challenge the new Texas bill. Elizabeth Nash, an associate from the Guttmacher Institute, stated that “even by taking the case, the court is signaling that they could undermine abortion rights.”

This certainly paints a grim portrait, but it’s still only one possible route. The other option is that SB 8 goes down in history as an explosive attempt to limit reproductive rights that fizzled out a few months later. There are sure to be plenty of legal challenges mounted against the bill. The Justice Department has already filed a lawsuit against Texas and asked a judge to block SB 8 so it cannot be enforced. Additionally, with respect to the Mississippi law on the way to the Supreme Court, the ruling on Casey was decided by a conservative majority with new appointees by a recent Republican president. In this instance, there is no reason history can’t repeat itself.

Make no mistake, the brawl rages on. Pro-choice vs. pro-life. Abortion rights vs. anti-abortion crusade. The sanctity of a woman’s body vs. the sanctity of the fetus. Maybe there will be a definitive answer codified into federal law sooner than we think. More likely, there will be perpetual controversy. The only sure prediction is that the future is hazy. As for now, all eyes remain on Texas. Let’s hope history remembers the events of the next few months kindly, and not as a disastrous relapse.