The draft opinion that leaked from the Supreme Court on May 2 threatens to take away abortion rights from women around the country, but it’s about more than just the right to care for our bodies.
Women’s right to choose what they do with their bodies appears to be under attack once again. This week, Justice Samuel Alito’s draft opinion in the case of Dobbs v. Mississippi, a case that called into question the state’s attempt to ban most abortions after 15 weeks of pregnancy, leaked to Politico, causing outrage, anger, fear, and disappointment across the country. The draft opinion went on to call for the reversal of Roe v. Wade, a landmark Supreme Court decision that gave women the right to choose back in 1973. Roe made abortion legal across the United States. In Alito’s draft, he is now calling for the undoing of the 1973 law. Many academics and political organizers believe that Alito and the court’s possible ruling, should the draft be made into law and abortion become illegal in the U.S., has far wider implications than just denying abortion care for women. It also has the potential to impact both social justice and equality.
While the country reels from the possible ramifications of such an unprecedented change in long-held rights, the broader implications are even more vast. They include everything from the long-term impact on maternal health — especially for women of color — to economic burdens and instability, to institutional racism and repression.
A leaked draft decision that removes federal abortion protection
The leaked draft decision, labeled as the “Opinion of the Court” (meaning that it would represent the majority opinion on the case), would end 50 years of federal constitutional protection of abortion rights and push the decision of whether to ban, restrict, or allow abortions to the states.
Alito wrote in the draft that “We hold that Roe and Casey must be overruled.” The 1992 case of Casey v. Planned Parenthood upheld Roe v. Wade and crafted what is known as the “undue burden standards,” which removed some of the more restrictive and arcane obstacles that women faced in order to obtain an abortion. (These included things like spousal notice, going through a predetermined waiting period, and parental consent, even if the parent was the one who got the child pregnant.) Roe v. Wade was the landmark 1973 case that recognized the constitutional right to abortion.
“Monday night felt like an earthquake that the entire nation felt,” Leila Abolfazli, the director of federal reproductive rights at the National Women’s Law Center, said in a phone interview with Shondaland. “The reverberations were felt deeply by a lot of people. This will have deep and profound impacts across society.”
Abolfazli said, “Our country is so retrograde when it comes to gender. We are going to double down on how this country doesn’t support women and families, thanks to this ruling, and it’s absolutely ridiculous. We have never experienced a situation where a country has an abortion protection and then loses that overnight.”
To be clear, the draft decision is just that, a draft, and many experts agree that there is some small possibility that the opinions could change, especially in light of the leak — though Abolfazli said that she doesn’t believe that is likely.
The court is largely conservative leaning, with a 6 to 3 conservative to liberal balance, thanks in large part to the nominations that former President Trump and Congress seemingly forced through during his time in office. Not to mention the years that a Republican Congress spent blocking President Barack Obama’s nominees, leaving vacant seats on the court. The Supreme Court’s main job is to serve as the final arbiter of law — historically a role that requires a balanced approach that doesn’t skew toward one political leaning over another.
The draft, if it becomes final, pushes the decision of whether to allow abortion, restrict it by various means, or ban it outright down to the individual states. States like Texas have already banned most abortions after 6 weeks into a pregnancy. And if the draft decision becomes final, there are 13 states with what are known as “trigger laws” in place. States like Arkansas, Utah, Texas, and Wyoming already have laws on the books that will ban abortion almost immediately after the Supreme Court releases its final decision this summer, according to The New York Times.
David S. Cohen is a professor of law at Drexel University’s Thomas R. Kline School of Law who explores the intersection of constitutional law and gender, emphasizing how the law impacts abortion provision, including violence against abortion providers, as well as sex segregation and masculinity. He also researches voting anomalies in the Supreme Court. He and two other law professors recently wrote a piece for Rolling Stone that argues that if the draft decision becomes final, the Supreme Court is condemning women to second-class status. He says that the court, with its current conservative bent, is focused only on furthering its conservative ideals, rather than the impact its decisions have on real people.
“The Supreme Court justices are appointed for life,” Cohen said in a phone interview with Shondaland. “The court is not concerned with the effects of their ruling. It is only concerned with what is right or wrong under the law, and their interpretation under that law.”
He continued, “The justices were put on the Supreme Court with a singular focus on conservative ideology. American conservatives do not care about social justice.”
Abolishing abortion rights will result in higher maternal death rates for women of color
That conservative ideology, many argue, impacts both poor people and people of color more significantly than it does their white counterparts, especially when it comes to abortion access, protections, and care.
The CDC reports that women of color are more likely to die in pregnancy, childbirth, and postpartum. In fact, according to data from the CDC for 2020 (the most recent data available), there was an average of 23.8 deaths per 100,000 live births for pregnant women in the United States compared with a rate of 20.1 deaths in 2019. The maternal mortality rate for Black women, however, was 55.3 deaths per 100,000 live births — 2.9 times the rate for white women. In short, according to the CDC, the increases in the maternal death rate from 2019 to 2020 for Black and Hispanic women were significant. According to the National Institutes of Health, systemic racism is a significant factor in this tremendous disparity.
Dr. William Lopez is a clinical assistant professor of health behavior and health education at the University of Michigan, where he focuses on the impact of policies on communities of color. He says that if the draft decision, which removes abortion protections, becomes final, the impact on maternal mortality could be dire.
“The maternal mortality rate is higher for pregnant people of color when they give birth,” he told Shondaland. “Forcing these people to give birth, forcing more people to give birth will result in higher mortality among communities of color. We already know this based on the data.”
Abolishing abortion rights will have significant economic impacts on women
In addition to a higher maternal death rate for white women and women of color, experts argue that abolishing abortion rights, and putting the decision into state legislatures hands, is likely to have a significant economic impact on women — and will continue to keep many poor women in a cycle of poverty.
According to a story at Bloomberg, abolishing abortion rights could roll back economic gains for women across the board.
Dr. Sarah Miller is an assistant professor of business economics and public policy at the University of Michigan and one of the authors of a study that looked at the economic and social outcomes of women who were denied abortions versus those who were not. She notes that privileged white women will always have access to abortions, no matter where they live.
“If you have privilege, you will always be able to get abortion services in a safe way,” she told Shondaland. “That has borne out historically. In contrast, the people who don’t have the means to get on a plane to California, or the eastern seaboard, won’t be able to access these services. If you look at the map of abortion constrictions, where states have made it incredibly difficult or restrictive to get an abortion, you’ll notice that these issues tend to be in places that have a high population of people of color. Particularly areas in the South.”
The Turnaway Study, conducted by the University of California, San Francisco (and a study that Dr. Miller has worked on and contributed to), showed that denying a woman an abortion that she needs or wants creates economic hardship and insecurity that lasts for years. In fact, women who were denied an abortion and went on to give birth experienced an increase in household poverty lasting at least four years relative to those who received an abortion, according to the data.
“We have followed these women over time,” Miller said. “We saw a big spike in financial problems, bankruptcies, an 80 percent increase in credit debt. We see higher rates of use of social services. We also know from the broader literature in economics, that having a child has a really big effect on economic self-sufficiency. A lot of the gender gap is basically nonexistent before women become mothers. Once women have children, we see a big collapse in earnings, and I think that’s something we can anticipate happening at a greater frequency if this draft opinion becomes final.”
Dr. Lopez agrees that the economic burdens will fall largely on communities of color. “Those most impacted by this change in policy will absolutely be low-income communities, especially communities of color, as is the case with all aggressive health policies,” Dr. Lopez said. “I also want to point out that this is especially egregious in a country that does not have universal childcare and in a country that does not have mandated parental leave.”
In context, there are only a small handful of the 193 countries in the United Nations that do not have paid parental leave: Suriname, New Guinea, a few small South Pacific nations, and the United States, according to NPR.
What we can do to protect abortion rights
The experts within this story all agree that there are only a handful of things we can do to protect women’s right to bodily autonomy, and work to break the cycle of systemic repression and poverty: Advocate, donate and vote.
“It is going to take all of us — local communities, local leaders, national leaders — to turn this ship around,” Abolfazli said. “It’s going to require sustained engagement. This is a decades-long effort now. It took 50 years to accomplish what has been wiped out overnight.”
That means that individuals must get out and vote in local and state elections and support abortion rights, universal health care, women’s rights, and family rights that offer support for child caregivers.
“I think the best next step is to try and codify Roe into law,” Dr. Miller said, “Instead of relying on the court. I also think that we need to look outside the political system and put pressure on corporations to act to protect women’s rights and abortion rights.”
Companies like Uber and Lyft have created funds to help defend drivers against lawsuits that could crop up if they drive women to clinics to have an abortion, according to CNN. Amazon and Citigroup have also announced programs that will reimburse employees for travel expenses and other costs if they need to travel to get a safe abortion, Reuters and ABC reported.
While the outlook is dire if the Supreme Court finalizes the draft decision this summer, it is clear that the time to engage, advocate, and vote is now if there is to be hope to protect all women’s right to bodily autonomy now and in the future.
“This is all part and parcel to unpacking hundreds of years of discrimination, slavery, and also an ongoing denial of tools to live and thrive for women across this country,” Abolfazli said. “There’s a huge gap forming and a whole new moment of engagement is going to be needed. The fight has just been ignited and that’s going to be what it takes to make abortion a meaningful right.”