Several votes just hours apart on Tuesday epitomized the state of abortion rights in the United States.
On Tuesday night, the Alabama Senate passed a total abortion ban, making it a felony punishable by up to 99 years in prison, with an exception only if there’s a serious health risk “to the unborn child’s mother.” Just a few hours earlier, Rhode Island senators voted on a House-approved bill to protect abortion rights, aiming to codify Roe v. Wade at the state-level in case the Supreme Court overturns it by upholding a ban like Alabama’s. The bill ultimately failed in committee, thanks to a Democrat who claims to be pro-choice.
Earlier that afternoon, the Michigan Senate passed a bill to criminalize dilation and evacuation (D&E), a common procedure for abortion during the second trimester, despite a veto threat from the governor. And that vote was held just as the Maine Senate advanced a bill to have private and public insurance cover abortion services.
Meanwhile, the U.S. Senate confirmed another Trump-appointed judge for a lifetime to the federal bench. Michael Truncale, who’s been vocal about his anti-abortion views and bragged about attending a March for Life rally, will soon serve on the U.S. District Court for the Eastern District of Texas.
It is true that abortion is still legal up to a certain point in pregnancy everywhere in the United States. But the right to legal, safe abortion is constantly under threat, with access already dependent on where you live and what your income is, as evidenced by Tuesday’s votes.
While Roe established the constitutional right to have an abortion, many state legislatures have chipped away at that right, creating a patchwork of abortion laws across the country. There have been over 1,000 abortion restrictions enacted by states in the 46 years since the landmark Supreme Court decision, and federal judges have sometimes upheld these restrictive laws when challenged — allowing red and blue states to move further apart on abortion policy.
A minor in Connecticut can access abortion without a parent’s permission, no problem. But in Colorado, a minor needs to let one parent know about the decision 48 hours before or get a judicial bypass, thanks to a 2003 law. Patients in Lubbock, Texas have to travel over 300 miles to the closest abortion clinic thanks to TRAP laws, whereas college students in California could soon have access to medication abortion on campus.
Abortion access was contingent on zip code and income even before Roe, as a few states already had legalized it before the 1973 Supreme Court decision. In states that didn’t, wealthy women and gender minorities still had the means to travel elsewhere to obtain the medical procedure. Still, Roe undoubtedly made access better, despite the legislative setbacks. So it is unnerving that lawmakers are emboldened enough to now say the quiet part out loud — that they want to overturn Roe — and the Supreme Court, with its conservative majority, is inclined to agree with them. (This unprecedented uncertainty about the future of Roe is also coupled with an unprecedented public support for it.)
Lawmakers in various states are pushing extreme anti-abortion legislation, in hopes that it will make it to the Supreme Court and help overturn Roe. Then, it will be up to states to individually decide whether or not abortion is legal. The legislation passed Tuesday in Alabama and Michigan are good examples of that. Both bills outlaw abortion before viability (around 24 weeks), which Supreme Court precedent says is unconstitutional.
Tuesday’s votes are the trend of 2019. Between January and March, 28 states considered bills that would ban abortion in all kinds of ways. The most notable is the so-called “heartbeat” ban, which would ban abortion as soon as a doctor can first detect cardiac activity, or as early as six weeks. Four states passed such bans this year, but none are in effect.
Lawmakers championing these bills have been very forward about their intent to use the legislation to eliminate the federal right to abortion altogether. “But what I’m trying to do here is get this case in front of the Supreme Court so Roe v. Wade can be overturned,” Alabama state Rep. Terri Collins (R), who sponsored the ban, told The Washington Post.
The nation’s highest court just might overturn Roe. Supreme Court Justice Stephen Breyer, for one, is concerned about this, saying in a dissent in an unrelated case on Monday that the decision overturning the court’s precedent “can only cause one to wonder which cases the Court will overrule next.” In the same paragraph, he mentioned Planned Parenthood v. Casey, the 1992 decision in which the Supreme Court upheld Roe on the basis of precedent.
— Jeffrey Toobin (@JeffreyToobin) May 13, 2019
There are four cases related to abortion before the Supreme Court right now. Last Friday, justices considered for the 13th time an Indiana law that would ban abortion before viability, triggering a challenge to Roe. A majority of lower, federal judges dismissed the law because it clearly violated Supreme Court precedent. So the fact that justices haven’t dismissed hearing the Indiana case is especially worrisome, as New York Magazine’s Irin Carmon has argued.
With Roe’s future unclear, pro-choice activists are trying to secure the right where they can. Measures like the one that Rhode Island tried to pass on Tuesday, and New York successfully enacted in January, matter all the more now, when it’s looking like legality will actually be contingent on zip code.
Patients from every zip code, however, will continue to have abortions because unintended pregnancies are inevitable. Before Roe, somewhere between 200,000 and 1.2 million illegal abortions were performed per year in the 1950s and 1960s. A lack of a federal standard doesn’t stop abortion, but it does make it dangerous.