Federalism and the Battle Over Abortion Laws

Opinion by Emma Galletta
Photo: Staff, Happy Medium

Editor’s note: This article was written before Justice Alito’s draft majority opinion for Dobbs v. Jackson Women’s Health Organization was obtained and published by Politico.

Since January 22, 1973, the landmark Supreme Court Case Roe v. Wade 410 U.S. 113 (1973) has been an established precedent for abortion access and regulation. Now, just under half a century later, what was once considered a legal right to bodily autonomy is being challenged by state governments throughout the nation. As an individual’s right to make private choices regarding their body becomes increasingly threatened, especially for the most vulnerable members of America’s population, the question remains: how did the Supreme Court become America’s self-proclaimed authority on abortion rights?

On July 14, 2020, the first amicus curiae brief was filed in the now-ongoing Supreme Court case Dobbs v. Jackson Women’s Health Organization (Dobbs). This brief, filed by the Roman Catholic Diocese of Jackson and the Roman Catholic Diocese of Biloxi (collectively “Amici”), was made in support of Petitioner Thomas E. Dobbs, the state health officer of the Mississippi Department of Health. As the sole two Roman Catholic Dioceses in Mississippi, they argued that they had “vested interests” in the matter of abortion; specifically, the “dignity and sanctity of all human life” (Dobbs). Less than one week later, the states of Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, and West Virginia filed in support of Petitioners (Romoser). Jackson Women’s Health Organization et al. filed a brief in opposition on August 19, 2020, and oral arguments were finally heard by the Supreme Court over a year later on December 1, 2021. 

What initially began as a challenge to the “Gestational Age Act” in Mississippi that forbade abortions after fifteen weeks (​​except in exceedingly extreme circumstances) has now become a striking example of government interference with reproductive rights. The aforementioned “extreme circumstances” do not acknowledge rape or incest as a valid reason to terminate a pregnancy, allowing exceptions exclusively for “a medical emergency, or in the case of a severe fetal abnormality” (Fausset). Additionally, the fifteen-week mark is a peculiar checkpoint; at this point, the fetus would not be viable outside of its mother’s womb for at least another two months, given that viability generally occurs at “about 24 to 26 weeks” (Fausset). 

Possible support for the 15-week checkpoint could be driven by furtive gubernatorial desire.  As Alice Miranda Ollstein and Megan Messerly of POLITICO note in an article from late February of this year, the legislators of “Arizona, Florida, West Virginia and several other states” pushing for the legalization of 15-week abortion bans after seeing Mississippi’s legislation believe they are taking a “politically and legally safer approach,” and that there is a certain “prudence” to the 15-week standard (Ollstein).  As Jessica Arons, senior policy counsel with the ACLU, maintains: states such as Arizona and Florida purposefully introduced “Texas copycat bills” (i.e. bills attempting to ban abortion at six weeks) simultaneously with their proposed 15-week bans.  This sets up the latter legislation to be viewed as “a reasonable compromise,” and “an acceptable center” (Ollstein).  Governor Phil Bryant of Mississippi comments on his bill’s timeframe by arguing that he’s “saving the unborn” and is quoted as saying that there is no “better thing we could do” (Ollstein).  This being said, regardless of Governor Bryant’s and the Republican-controlled Mississippi State Legislature’s personal views on the livelihood of fetuses, the 15-week mark offers a uniquely profound challenge to both Roe v. Wade and Planned Parenthood v. Casey.  

More than simply demonstrating inconsistency within previously established abortion timelines, the illegitimacy of the currently proposed standards is highlighted through the neglect of precedent set by the Supreme Court. This problem of state and federal government interference with reproductive rights is showcased by the 1992 Supreme Court decision Planned Parenthood v. Casey 505 U.S. 833 (1992); in this case, not only was Roe v. Wade 410 U.S. 113 (1973) reaffirmed but an “undue burden” standard was established with the purpose of analyzing abortion restrictions. This paved the way for the transition from Roe’s trimester system to a new structure based on viability – crucially, both of these structures are challenged by Mississippi’s proposed 15-week ban. Under Casey, a pregnant individual’s right to seek and obtain an abortion before fetal viability without state interference was officially recognized by the court (Sorkin), with viability in this context reflecting the aforementioned standard of 24 to 26 weeks, or just before the third trimester begins. The interest of the state when the fetus was not yet viable was deemed “not strong enough” to justify abortion prohibition or the “imposition of substantial obstacles” to a pregnant person’s ability to choose if they wanted an abortion (Justia).  

These “substantial obstacles” are further clarified within Casey’s establishment of TRAP laws, or Targeted Restrictions on Abortion Providers.  As explained by Planned Parenthood, these laws are “costly, severe, and [impose] medically unnecessary requirements…on abortion providers and women’s health centers” (Planned Parenthood).  Ultimately, they inhibit access to safe, accessible, and medically correct abortions. Within the context of TRAP laws came the emergence of the “undue burden” standard. This standard juxtaposed the aforementioned laws by ensuring that abortion restrictions did not produce any “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability” (Oyez). In other words, in Casey’s 5-to-4 decision, an individual’s right to choose an abortion procedure was not to be legally intervened with by the state throughout the first 24 weeks of their pregnancy. Furthermore, the opinion of the Court maintained that there would have been significant, inequitable repercussions on those that had come to rely on abortion services in the two decades between the cases if the justices had ruled in favor of increased Pennsylvania abortion restrictions and renounced the limitations on state power established under Roe v. Wade. Despite Casey’s somewhat unexpected reaffirmation of Roe, the ruling did increase ambiguity in terms of what exactly justifies the imposition of an abortion restriction. This ambiguity has allowed states to formulate their own restriction-based laws and inherent justifications, with the current state of affairs in Mississippi being a prime example. As long as a TRAP law can be proven to have been designed to accomplish something the state has a specific, legitimate interest in and does not violate the “undue burden” standard, these laws are Constitutional; thus making abortion increasingly difficult to access. 

That being said, pre-viability prohibitions on elective abortions have become continuously more extreme. Some involve mandatory waiting periods for patients while others establish stricter licensing requirements to shut down clinics offering abortion. In the case of Dobbs v. Jackson Women’s Health Organization, Mississippi argues that prohibitions on abortion that begin at 15 weeks of pregnancy do not impose an undue burden given that this timeframe is sufficient for a pregnant person to access abortion care. As Maya Manian, a visiting professor at American University Washington College of Law, argues in a contribution to the SCOTUS blog, the Turnaway Study should be referenced to make note of the abundant harm faced by thousands of pregnant individuals that are unable to access abortion care (Manian). This study, completed by the ANSIRH (Advancing New Standards in Reproductive Health) program at The University of California San Francisco, “describe[s] the mental health, physical health, and socioeconomic consequences of receiving an abortion compared to carrying an unwanted pregnancy to term” (ANSIRH). Within ANSIRH’s findings is the conclusion that denial of abortion creates worse “financial, health and family outcomes” than would be the case if a pregnant person elected to have an abortion procedure (ANSIRH). Furthermore, it was made clear that receiving an abortion does not cause harm to the health and well-being of the pregnant person undergoing the procedure. Rather, denial of abortion can have grave financial implications; the Turnaway Study concluded that those forced to carry an unwanted pregnancy to term are four times as likely to live below the Federal Poverty Level (ANSIRH). The study also found that there are significant repercussions on the lives of those born out of unwanted pregnancy as well as children already present within the family of a person who was denied abortion access in addition to the health implications experienced by the carrier of the child during labor, birth and postpartum (ANSIRH). The gravity of this situation—if not already obvious—reveals itself in both the immediate and life-long consequences of abortion restrictions.

Dorothy E. Roberts, social justice advocate and professor of law, sociology, and civil rights at the University of Pennsylvania Carey Law School, has done work regarding policing, family regulation, science, medicine, bioethics, and more (Penn Law). Roberts is quoted in Manian’s article with an explanation of reproductive justice. She defines this concept as a framework that ensures a woman’s right “not to have a child” as well as the right to raise children with “dignity” in “safe, healthy, and supportive environments” (Manian). When a pregnant individual is denied abortion access through state and federal limitations or restrictions, there is a blatant and neglectful effect on reproductive justice. 

The intersectionality of race, class, and gender within the context of reproductive justice is also extraordinarily obvious—and crucial to recognize through the lens of public policy—as access to abortion services grows increasingly limited. As Manian makes clear, abortion bans will, without a doubt, disproportionately affect vulnerable groups such as low-income individuals and pregnant people of color that already have minimal-to-no access to health care (Manian). Statistics show that 75% of pregnant people who have an abortion procedure live “at or near the federal poverty line,” and more than 50% are people of color; moreover, the risks of a person of color carrying their pregnancy to term are demonstrated within the preexisting maternal mortality crisis, which has a disproportional effect on Black women (Manian). In addition to the vast disparities in access to reproductive health care (such as access to abortion), the relationship between race and class must also be considered. The implementation of stricter abortion laws is a direct attack on all pregnant individuals with a greater impact on those that are Black. 

Studies also show that further limitations on abortion access are likely to worsen the maternal mortality crisis, compounding the detriment to the Black community (Manian).  As evidenced by recent research from the University of Colorado Boulder, a nationwide abortion ban would increase pregnancy-related deaths by 21%, with a “33% increase among Black women” (Marshall).  These estimates do not include the inevitable rise in abortion-related deaths due to individuals experiencing “unsafe abortions” or likely self-induced “attempted abortions” (Marshall).  This reaffirms with vast empirical data the notion that for many pregnant individuals, especially those already part of vulnerable communities with insufficient social safety nets and minimal access to much-needed resources, “staying pregnant is more dangerous…than having an abortion” (Marshall).  As Amanda Stevenson, an assistant professor of sociology at the University of Colorado Boulder, maintains, the already-present public health crisis in the United States will be exacerbated by “increasing Black women’s exposure to the risk of pregnancy-related mortality by denying them access to abortion” (Marshall).  It cannot be ignored that the mortality risk faced by non-Hispanic, pregnant Black individuals when forced to carry a pregnancy to term is over three times as high as the risk faced by non-Hispanic white women.  When the current social and political structure of the nation denies Black folks equal access to “opportunities like housing, education, jobs and healthcare,” it should not come as any surprise that pregnant Black individuals seek abortions at higher rates than their white counterparts (Marshall). The denial of abortion is a direct, targeted attack on members of non-white racial groups, as well as members of lower socioeconomic classes.  Access to safe abortions is not in nearly as grave jeopardy for pregnant, middle- and upper-class white individuals as it is for the rest of America’s pregnant population.  Strengthening restrictions on abortion in such a tyrannical way is racial and class warfare.  Fatima Goss Graves, president and CEO of the National Women’s Law Center, advocates for an individual’s right to elect to have an abortion on the grounds that Supreme Court precedent categorizes abortion as a right “firmly grounded… in personal autonomy, bodily integrity, and freedom from government intrusion” (Graves). In the Casey decision, abortion was described as an immeasurably “personal” and “intimate” decision, as well as one that has crucial implications on a pregnant individual’s ability to “participate equally in the economic and social life of the Nation” (Graves). Restrictive access to abortion and limitations on reproductive health care by state or federal authorities have considerably detrimental effects on a pregnant individual’s physical, economic, educational, and professional well-being. These effects are heightened within communities of color and in the lives of individuals who live in poverty and/or work low-income jobs. Some individuals who seek abortion may have become pregnant due to a lack of accurate, informative, or comprehensive sexual education and/or an inability to access adequate contraceptive care – effects of a system filled with discriminatory practices and barriers to the health care every individual deserves. The overall health and economic security experienced by pregnant people existing within marginalized groups are in peril. Pending a formal decision by the Supreme Court regarding abortion rights, it is impossible to separate the limitations to reproductive rights implemented by state and federal authority from their racist, classist, and broadly oppressive roots.

References

Dobbs v. Jackson Women’s Health Organization (Docket No. 19-1392, 2022). 

“Dorothy E. Roberts.” Penn Law. https://www.law.upenn.edu/faculty/roberts1 (April 3, 2022). 

Fausset, Richard. 2018. “Mississippi Bans Abortions After 15 Weeks; Opponents Swiftly Sue.” The New York Times. https://www.nytimes.com/2018/03/19/us/mississippi-abortion-ban.html (May 4, 2022). 

Graves, Fatima Goss. 2021. “Our equality and liberty are on the line.” SCOTUSblog. https://www.scotusblog.com/2021/11/our-equality-and-liberty-are-on-the-line/ (April 3, 2022). 

Manian, Maya. 2021. “Dobbs and the undue burdens of pre-viability abortion bans.” SCOTUSblog. https://www.scotusblog.com/2021/11/dobbs-and-the-undue-burdens-of-pre-viability-abortion-bans/ (April 2, 2022).

Marshall, Lisa. 2021. “Study: Banning abortion would boost maternal mortality by double-digits.” University of Colorado Boulder.  https://www.colorado.edu/today/2021/09/08/study-banning-abortion-would-boost-maternal-mortality-double-digits. (May 5, 2022).

Ollstein, Alice Miranda, et al. 2022. “States push 15-week abortion bans as the right argues over a post-Roe strategy.” POLITICO. https://www.politico.com/news/2022/02/23/states-push-15-week-abortion-bans-00010782. (May 4, 2022).

“Planned Parenthood of Southeastern PA. V. Casey, 505 U.S. 833 (1992).” Justia Law. https://supreme.justia.com/cases/federal/us/505/833/ (March 24, 2022). 

“Planned Parenthood of Southeastern Pennsylvania v. Casey.” Oyez. https://www.oyez.org/cases/1991/91-744 (March 26, 2022). 

Planned Parenthood. 2022. “What Are TRAP Laws?” Planned Parenthood Action Fund. https://www.plannedparenthoodaction.org/issues/abortion/types-attacks/trap-laws. (May 4, 2022).

Romoser, James, ed. “Dobbs v. Jackson Women’s Health Organization.” SCOTUSblog. https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/

(March 25, 2022).