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Threat to abortion is just the beginning of the assault on rights

The logic being used against Roe vs Wade could be used to strike down same-sex marriage or access to contraception.

By Emily Tamkin and Katharine Swindells

The draft Supreme Court decision leaked on 2 May said only what has been obvious since the Supreme Court heard oral arguments in Dobbs vs Jackson Women’s Health Organisation months ago: the court is poised to overturn Roe vs Wade, the 1973 case that guaranteed federal constitutional protections of abortion rights.

The decision, once rendered, will leave it to states to decide whether the right to have an abortion is protected. In roughly half of the country, that means legal abortion will be restricted. Samuel Alito, the judge who drafted the decision, was nominated to the court by George W Bush and has served since 2006. He is part of the court’s conservative wing, and one of its six Catholics. He describes himself as both an originalist and a textualist, which means that the constitution should be interpreted as the framers intended and the law should be read literally. (It is worth noting that the framers did not intend for women to have the right to vote.)

Alito’s decision, if it is indeed published, will formally end the right to abortion in America.

Analysis by the Guttmacher Institute, which works to advance reproductive health and rights, found that nine states still retain their abortion bans from pre-1973, which could come back into effect. Thirteen states have post-1973 abortion bans that would be triggered by Roe vs Wade being overturned, and nine have restrictions that would come into effect. Seven states, including Kansas, Kentucky, Louisiana and Ohio, have expressed the intent to limit abortion as much as the Supreme Court ruling will permit.

Guttmacher also identifies four states, based on their political composition and recent actions, that its researchers believe are likely to ban or restrict abortion as soon as possible, such as Indiana, which in the past decade has passed 55 abortion restrictions and bans.

Only 17 states (including Washington DC) have policies that protect the right to abortion, and only five protect abortion throughout the whole pregnancy.

The Supreme Court's decision will impact millions of Americans. That impact will primarily be felt by poor people, teenagers, people of colour and immigrants whose legal status has been threatened. 

What the decision will not be is the final attack on civil rights in America. It is worth noting that Alito’s draft did not only attack Roe, but also Planned Parenthood vs Casey, a 1992 Supreme Court ruling that reaffirmed Roe and struck down a law that said married women must notify their husbands before obtaining an abortion. If Casey is overturned, states will once again be free to pass such laws.

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There have already been reports that Republican politicians and lobbyists are working towards a law that would ban abortion at the federal level. The logic put forward in Alito’s draft decision -- that abortion is not mentioned in the constitution, and so Roe vs Wade must be overturned -- could also easily be used against Griswold vs Connecticut, the 1965 decision that said that married couples had the right to buy and use contraception, or to overturn Obergefell vs Hodges, the 2015 decision that gave same-sex couples the right to marry.

Once this decision is handed down half of the country will find that it does not have legal access to abortion, and that should be understood as the beginning, not the end, of the fight against reproductive rights in the United States. 

As for the fight for reproductive rights, there will be protests and rallies. There have already been calls for Congress to codify abortion access. But though such legislation has passed the House of Representatives, the Democratic majority in the Senate remains too slim to do so.

For now, abortion remains legal. For now, people are sharing links to local abortion funds. For now, people remember what it was like to live in a country where abortion was, if difficult to access, still legal on a federal level. For now. But not for long.

[See also: Roe vs Wade: What to write when your country takes away your rights?]

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