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Abortion rights activists Carrie McDonald (L) and Soraya Bata react to the Dobbs v Jackson Women’s Health Organization ruling which overturns the landmark abortion Roe v. Wade case in front of the U.S. Supreme Court on June 24, 2022 in Washington, DC. (Photo by Anna Moneymaker/Getty Images)

Fighting for Abortion Rights in Post-Roe America

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

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


© 2021 Brennan Center for Justice
Weiss-Wolf

Jennifer Weiss-Wolf

Jennifer Weiss-Wolf is the inaugural Women and Democracy Fellow at the Brennan Center for Justice.

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