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« Women lead push to protect our health care! | Main | Whew! Birth control coverage safe for now »

The future of Roe, on the 46th anniversary

Celebrating the 46th anniversary of Roe v. Wade!

Today marks the day—46 years ago—of the landmark Supreme Court decision Roe v. Wade, which established the constitutional right to abortion in the U.S. But even as we celebrate the anniversary of this momentous decision that gave women the right to choose if and when to have a family, we also recognize its limitations as well as its potentially uncertain future.

We are heartened by movement in progressive states to enact state-level protections for legal abortion, such as the Reproductive Health Act expected to finally pass both houses of the New York State Legislature later today. But in conservative states, women needing abortion care are facing increasing obstacles.

Despite GOP attacks on abortion, support for Roe is widespread

As we’ve noted before, Donald Trump has worked to fulfill his campaign promise to nominate only judges who would overturn undermine Roe v. Wade. With the appointment of Brett Kavanaugh, Trump did just that. Kavanaugh has made clear his position on abortion rights, giving a speech praising Justice Rehnquist’s dissent in Roe v. Wade, and dissentingin last fall’s Garza v. Hargan case about an undocumented immigrant minor seeking an abortion.

Yet Kavanaugh’s opinions on abortion do not reflect those held by the rest of the country. In a recent poll73% of respondents said they do not want Roe overturned, and 67% said abortion should be legal in all or most cases. When told that future access to abortion may depend more on the laws in their state than the Supreme Court, 63% of voters say they would want their state elected officials to protect or expand access to abortion

State attacks on abortion continue to target already marginalized groups

Even through Roe decriminalized abortion in 1973, Roe has yet to become a reality for allwomen. Because of racial and socioeconomic disparities, age, immigration status, geographic barriers and other factors, many women are already living in a post-Roe world in which it’s virtually impossible to get abortion services.

According to the Guttmacher Institute, states have been growing increasingly hostile towards abortion rights. Guttmacher’s research found that the number of states with policies hostile to abortion rights grew from only four states in 2000 to 21 states that have policies hostile or very hostile to abortion rights in 2019.
In 2018 alone, 23 abortion restrictions were enacted. State-level abortion restrictions, such as waiting periods,  targeted regulation of abortion provider (TRAP) laws, and more, make it increasingly difficult for women to get the health care they need. As a New York Times editorial from today notes, 43 percent of all women of reproductive age, or approximately 29 million women, live in areas that are hostile to abortion rights. There are currently seven states that each have just one abortion clinic left.

What have advocates been doing to “back up” Roe and secure other reproductive health protections at the state level?
If Roe v. Wade were overturned or gutted, what might abortion rights and access look like across the country? In a “post-Roe” world, the authority to regulate abortion would go to the states. Currently, nine states – including California, Connecticut, Delaware, Hawaii, Maine, Maryland, Nebraska, Oregon, and Washington – have adopted laws that protect the right to abortion at the state level prior to viability or when necessary to protect the life or health of the woman.
In addition, states with archaic pre-Roe abortion bans that are still on the books have a renewed sense of urgency to repeal them. For example, last year, our Boston-based regional coordinator, NARAL Pro-Choice Massachusetts, successfully advocated for the repeal of the state’s 173 year-old abortion ban through their Negating Archaic Statues Targeting Young Women Act.

Now, NARAL Pro Choice Massachusetts is working to build on that success as they advocate for the ROE Act, or the Act to Remove Obstacles and Expand Abortion Access. The proposed policy would reform state abortion laws to ensure that anyone, regardless of age, income, insurance or immigration status, can access safe and legal abortion. This bill would codify the right to abortion in state law; remove mandatory parental consent to abortion, which disproportionately impacts low-income teens and teens of color; allow for abortions after 24 week in case of grave fetal abnormalities; update medically inaccurate definitions of abortion and pregnancy in the law; remove a mandatory 24-hour waiting period for abortion care (though currently unenforced due to litigation); and establish safety net coverage for abortion care for those without health insurance.

In New York, RWV-NY has worked alongside its women’s health colleagues to successfully advocate for the adoption of the Reproductive Health Act, which secures and protects access to abortion in New York by strengthening and updating New York state law and bringing it in line with the standard of Roe v. Wade. It also protects health care providers who perform abortion services, and treats abortion as health care, not a criminal act. The state Senate, where Republicans blocked passage of the bill in the past, is now controlled by Democrats, who are poised to approve the bill later today. Governor Cuomo is expected to sign this piece of legislation, alongside the Comprehensive Contraception Coverage Act, which protects and expands the ACA’s contraceptive coverage requirement, and the Boss Bill, which prohibits employers from discriminating against an employee because the employee or their dependent made a reproductive health decision that conflicts with the employer’s personal beliefs.

In 2017, our Portland-based regional coordinator, NARAL Pro-Choice Oregon, successfully advocated for the adoption of one of the most far-reaching reproductive health policies to date. The Reproductive Health Equity Act requires coverage of the full range of reproductive health related services with no cost-sharing for all Oregonians, including undocumented immigrants and trans people. The new policy covers contraceptives, abortion, screenings for cancer and sexually transmitted infections and prenatal and postpartum care. Our Denver-based regional coordinator, Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR), as well as our Seattle-based coordinator, Northwest Health Law Advocates, are pushing for similar measures in Colorado and Washington this year.

Advocates in somewhat more conservative states can also take action to begin building the foundation for establishing abortion protections in their state. For example, pro-choice advocates are pursuing a lawsuit in Pennsylvania that would overturn the state’s ban on Medicaid funding for abortion. As the New York Times notes, currently, only 16 states allow for Medicaid coverage of abortion. This puts abortion out of reach of low-income women who rely on Medicaid for the health care they need.
Advocates in even redder states can work to counteract the anti-choice narrative by introducing pro-choice legislation, which, despite its unlikely passage, has the potential to start an important conversation and raise awareness about the need for state-level abortion protections.
Where do we go from here?
While the future of Roe remains uncertain, advocates can act now to shore up protections at the state level for abortion as well as other reproductive health services. In addition, advocates can expand our focus beyond abortion, and push for policies that will help to achieve true reproductive justice, including policies relating to immigrants’ rights, voting rights, paid family leave, maternal health for women of color, living wages and access to health care for incarcerated women.

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