The following post is from the editorial board of The New York Times:
Imagine that every state were free to choose whether to allow Black people and white people to marry. Some states would permit such marriages; others probably wouldn’t. The laws would be a mishmash, and interracial couples would suffer, legally consigned to second-class status depending on where they lived.
It seems an unthinkable scenario in 2022. That’s because in 1967 the Supreme Court unanimously ruled that barring interracial marriage, as 16 states still did, violates the 14th Amendment’s guarantee of equal protection. “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the state,” the court stated in Loving v. Virginia.
More than half a century on, Loving is considered one of the court’s great rulings, and yet it was not universally admired at the time. Southern states complied only grudgingly; Alabama didn’t repeal its ban on interracial marriage until 2000. That’s the point of having a federal Constitution that is supreme; the guarantees and rights in that document apply to all Americans equally, wherever they live. The court system — and the Supreme Court in particular — exists to protect those rights when state and local authorities refuse to.
Many who oppose Roe v. Wade today, and even some who support it, argue that the 1973 ruling short-circuited a running debate over abortion, a debate that should have been allowed to play out in the states, many of which had long banned abortion. This is one of the main justifications in the leaked draft opinion in which a majority of Supreme Court justices appear ready to overturn Roe and Planned Parenthood v. Casey, the 1992 decision that preserved Roe’s central holding with certain restrictions.
The problem with this reasoning is that, as in Loving, leaving the matter to individual states and the political process means that millions of Americans will be denied their fundamental rights — in this case, the right of women to decide what happens inside their own bodies.
The draft opinion relies heavily on the lack of a mention of abortion in the Constitution, and therefore argues that the document cannot be the basis for the right to terminate a pregnancy. The Constitution also says nothing about interracial marriage, but that didn’t prevent the justices from finding in the 14th Amendment the guarantee that no couple may be treated differently because of the color of their skin.
In short, constitutional rights are meaningless unless they apply across the entire country. That is why the Supreme Court decided Loving v. Virginia and Roe v. Wade as it did. These rights are inherent in the Constitution, even if they are not explicit in it.
The principle is clear: Women and men should have equal control over their own bodies, as many Americans believed in 1973 and a majority believe today. And yet the right to choose whether to terminate a pregnancy is on the verge of being eliminated because five members of the current Supreme Court don’t like it.
Congress has failed repeatedly to codify the protections of Roe and Casey in federal law despite various efforts, not only from Democrats but also from two Senate Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska.
Top Democrats are now left planning a vote on an abortion rights bill that they know has zero chance of passing. This is an empty gesture, coming after years of the Democratic Party failing to provide meaningful leadership on reproductive freedom despite the clear warning signs that Roe was endangered.
President Biden, as leader of the party, has an obligation to take the threat to Americans’ constitutional rights seriously by doing all he can to protect access to abortion where it still exists. The White House can encourage regulators to make it easier for women to get medication abortions and over-the-counter birth control, to challenge state laws that limit access to medication abortions and to lease federal property to abortion providers. This would at least show a commitment to the issue, even if legislative options are limited.
Overall, the outlook for reproductive freedom is bleak. In 13 states, “trigger” laws will automatically or very quickly ban abortions after Roe is overturned, as seems highly likely. In about a dozen other states, lawmakers are gearing up to severely restrict access to abortions, if not effectively prohibit them, as Texas has already done without interference by the Supreme Court.
The upshot: Within a few months, abortion could be illegal in more than half the states. The anti-abortion movement isn’t stopping there. Efforts are already underway to impose a nationwide ban on abortion as soon as Republicans regain the White House and Congress, which could happen as soon as 2025.
For the foreseeable future, the real battle for reproductive freedom will be fought in the states, by regular Americans, and their state and local representatives, who are trying to protect this fundamental right while they still can. That means, first and foremost, securing more access.
California lawmakers are moving quickly to pass a package of billsthat would make their state, the most populous in the country, also one of the most accessible for women seeking to exercise their reproductive freedom.
Those most in need of abortions are often the least able to afford them. States that want to protect reproductive freedom are helping to pay for the procedure and for the travel required to obtain it — costs that can easily run into the thousands of dollars and are prohibitive for many women. Data from the Centers for Disease Control and Prevention show the percentage of abortion services in Illinois and New York provided to nonresidents has already risensharply over the past decade, a trend driven by increased restrictions on abortion in other states.
New York lawmakers are considering a bill that would direct funds to abortion providers, allowing them to increase staffing and security to meet already rising demand. In March, Oregon lawmakers approved a $15 million fund for these purposes, which should help provide access to abortion not only for residents of the state but also for those in neighboring Idaho, which has already passed a bill that would prohibit abortions after about six weeks.
All laws are subject to being overturned when the political winds shift, of course. That’s why abortion-rights groups in some states are focused on their own constitutions. In New York, supporters of abortion rights, including Gov. Kathy Hochul, are pushing for a constitutional amendment that would go before New York voters in 2024, to protect reproductive rights in case the State Legislature falls into Republican hands. In Michigan, Gov. Gretchen Whitmer last month asked her state’s Supreme Court to rule that the Michigan Constitution affirmatively protects the right to an abortion.
Finally, pro-choice states are realizing they have to play some strategic defense when it comes to protecting abortion providers, and possibly women who get abortions themselves, from states that reach outside their borders to force their anti-abortion laws on everyone else. Missouri lawmakers, for example, are considering a bill that would allow its residents to sue anyone in any state who helps a Missouri resident get an abortion.
In anticipation of laws like these, a bill in New York would bar law-enforcement authorities from assisting in the out-of-state investigation of abortion providers or women who seek abortions in New York. The Connecticut General Assembly has gone even further, passing a law to allow providers in the state to countersue anyone who sues them for damages for providing abortion care.
Meanwhile in Louisiana, a state that still imposes the death penalty, lawmakers recently passed out of committee a bill that would define a fertilized egg as a full person — meaning that anyone who performs an abortion, and any women who obtains one, could be charged with murder.
What all this shows is that the right to an abortion cannot be left at the mercy of individual states — something that few people on either side of this issue genuinely seem to want.
This is why a national standard is necessary. That national standard, at least for a few more weeks, is Roe v. Wade as modified by Planned Parenthood v. Casey. These two rulings are not perfect, but for all their flaws, they have managed to strike a delicate balance that reflects the public’s complex position on a morally fraught issue. The majority of Americans do not want these cases overturned, and an overwhelming majority say that abortion should not be banned outright.
If you thought Roe v. Wade itself led to discord and division, just wait until it’s gone.
