Weakening Roe v. Wade: Conservative States Have a Plan

In 1965, illegal abortions performed in unsafe settings made up one-sixth of all pregnancy-related deaths. In 1973, the Supreme Court addressed this issue in the landmark decision from Roe v. Wade by holding that access to safe and legal abortion is a constitutional right. States that do not agree with this decision have consistently attempted to attack access to abortion, most often by imposing targeted regulations of abortion providers, or “TRAP” laws. These restrictions, which impose costly, severe, and medically unnecessarily requirements on abortion providers, are designed to make access more difficult by effectively putting providers out of business. In 2016, the Supreme Court struck down Texas restrictions that created an undue burden for women seeking abortion services in Whole Woman’s Health v. Hellerstedt. Although this decision did not invalidate all TRAP requirements, it opened the door for challenges to other state TRAP laws.

Now, less than 50 years after the Roe v. Wade decision, states are devising new plans. Conservative-leaning states are introducing anti-abortion bills in hope that lawsuits will come before a Supreme Court that is now packed with appointees of the previous administration. The states are attempting to chip away at abortion rights by using the courts to add more restrictions on access. As a result of the democrat-led Congress and the new Biden Administration, the only way that the anti-abortion groups can achieve their goals is by pushing legislation through at the state level. Over a dozen states have introduced bills that would prohibit access to abortion medication through the mail and require doctors to offer an ultrasound before terminating the pregnancy. The most shocking of these, a Montana bill that would create a ballot initiative asking Montanans to decide whether fetuses that live through abortion are people with legal rights. It is highly likely that these proposed bills will become law, and subsequently will be challenged in court. Nicole Smith, a fellow of the Society of Family Planning confirmed that the onslaught of bills is going to result in a legal battle, starting in the states and progressing to the Supreme Court, which is exactly what the conservative states intended.

If conservative states are successful at weakening or overturning Roe v. Wade, less than half of U.S. states will retain its abortion protections. The highest courts in ten states have recognized the right to abortion as a fundamental right, and 11 additional states have passed legislation protecting access to abortions. That leaves 29 states that are lacking legal protection for abortions. Of those 29, there are approximately 24 that are considered hostile toward abortions and would likely attempt to ban access altogether. The remaining five states have not considered the question in their highest courts, and have no legislation guaranteeing rights, so the effects of weakening Roe v. Wade would be uncertain. Nearly one in four women in American will have an abortion during her lifetime – but where will these women go, and what will they experience, if abortion is outlawed in their state? As of January 2021, at least 19 abortion related cases are close to reaching the Supreme Court – which means that conservative states are one step closer to  restricting abortion rights that the Court once ruled were constitutionally protected.

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