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3 June 2021updated 21 Jul 2021 12:57pm

How the right to an abortion in the US could end in a matter of months

If the Supreme Court upholds a new law it would effectively overturn Roe v Wade – threatening access to abortion on the national level.

By Emily Tamkin

The right to have an abortion in the United States, long under threat at the state level, may soon be in jeopardy on the national stage too.

Last month the Supreme Court decided it would this autumn hear a case about a 2019 abortion law introduced in the state of Mississippi (where there is currently a grand total of one abortion clinic). This law bans abortions after 15 weeks from a person’s last period before conception, with some very limited caveats which do not include rape and incest. If the Supreme Court upholds this law, it would effectively overturn Roe v Wade, the 1973 ruling which states an individual has a right to an abortion without excessive restriction by the government. The right to an abortion is currently, in theory if not in practice, the law of the land in the US. In a matter of months, that may not even be theoretically the case. 

For years, conservative politicians, lobbying groups, activists, lawyers and judges have tried to make it difficult for people to get an abortion. To take just a few examples from recent years: in 2014 90 per cent of the US’s counties did not have an abortion clinic. Eighteen states put 50 new abortion restrictions in place in 2016, and 15 states added 27 restrictions on abortion and family planning in 2018 (only 23 of these sought to restrict abortion specifically, the smallest number of new annual restrictions in the last decade). In 2019 the author Rebecca Traister wrote of how, throughout her life, she has watched people fight to protect the right to access abortion services: “I have watched as politicians – not just on the right, but members of my own party – and the writers and pundits who cover them, treat reproductive rights and justice advocates as if they were fantasists enacting dystopian fiction.” But they were not fantasists; the threat to reproductive rights was, and is, real.

The threat at the state level continues. Last month the Texas governor Greg Abbott signed into state law a new bill that will ban abortions six weeks after gestation (which is around the time, if not prior to the moment, many people discover they are pregnant). The bill will go into effect in September. Some pro-choice activists hope it will be blocked in court, but are planning on raising money to help people access services out of state in case it is not. 

Soon, the upcoming Supreme Court case could make it yet harder to access an abortion. With a majority of conservative judges installed by former president Donald Trump, the most powerful court in the country might reverse the 1973 decision to protect a woman’s right to choose.

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I should say here that I have been pro-choice for as long as I have known that there was such a thing. I cannot remember a time that I believed a person should be forced to be pregnant if they did not want to be. I do remember, however, being reassured by my family that I shouldn’t worry: I would always be able to get an abortion, Roe v Wade would not be overturned, and I would always have the resources, both informational and financial, to seek an abortion if I wanted one.

Safe abortions will remain accessible for some: for those in states that don’t pass draconian legislation, and for those who have money to travel out of states that do, or even out of the country, or who can pay a doctor to come to them. But services will likely become less available to those with fewer resources. As a consequence, the number of illegal, and more dangerous, procedures will likely rise, as will the number of people forced to carry to term pregnancies they do not want. 

As Elizabeth Warren said of the era before Roe v Wade: “I’ve lived in an America in which abortion was illegal. Rich women still got abortions, and that’s what we have to remember about this.” Similarly, in Romania in the 1960s and 1970s, rich women found ways around a stringent abortion ban. Some were able to bribe doctors, others managed to smuggle in contraceptives. More disadvantaged women, meanwhile, took matters into their own hands. An estimated 10,000 women in Romania died from unsafe abortions by 1989. Hundreds of thousands of children were sent to state orphanages.

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There may seem to be an irony that the most dramatic attack on abortion rights in generations is happening now, with Congress and the White House under Democratic control. Biden’s budget, for example, removes a ban on federal funding for most abortions (a ban that Biden supported for most of his career). But the tightening state laws, the increased restrictions and the takeover of the courts have all been years in the making. The anti-abortion movement has been organising and working since Roe v Wade. States that support the movement (and activists and legislators in those states) mimic one another, and the campaign is well funded. And unlike Democrats – who, as Traister noted, have needed to be convinced that abortion access is actually under attack – the movement’s supporters need no persuading that there is a fight going on and that they are winning. 

The consequences of these actions – by legislators, lobbyists, donors, judges and all those who have spent years trying to restrict a person’s right to do what they want with their body – will be felt for years to come.

[See also: How Poland’s abortion protests became a fight for democracy]