Before her death, Supreme Court Justice Ruth Bader Ginsburg recognized that Roe v. Wade — the near 50-year-old landmark opinion establishing a constitutional right to abortion — was in some trouble.
In speeches, she would explain the consequences.
“There will never be a time when women of means will lack choice,” Ginsburg told an audience at Georgetown University Law Center in 2015, because they could travel across state lines to obtain the procedure.
What concerned Ginsburg was the fate of women without means living in states hostile to Roe.
“The women who won’t have that choice are poor women,” Ginsburg said. “That doesn’t make a whole lot of sense.”
Now the issue is squarely in front of the Supreme Court because eight months (almost to the day) of her death, the justices — including Amy Coney Barrett who took her seat — announced they would take up a Mississippi law that directly challenges Roe.
Supporters of abortion rights say that the future of choice, particularly for poor women, is at stake and note that Mississippi has one of the highest percentages of population that is below the poverty level, according to 2019 Census data.
“My greatest fear is that we are moving backwards, we are being taken backwards,” Shannon Brewer, the director of the clinic behind the challenge said in an interview, stressing that the average abortion costs anywhere from $500 to $600. “That means we have fought all of these years for nothing, and no one listened because they still don’t think women have to right to make this decision,” she added.
On the other side, opponents of abortion say that after a half century, they hope the justices will overturn Roe, and allow the states to decide the issue.
“There are those who would like to believe that Roe v. Wade settled the issue of abortion once and for all,” Mississippi Attorney General Lynn Fitch said in a statement after she asked the Supreme Court to overturn the case. She said the courts have set “artificial guideposts” that have “stunted important public debate on how on how we, as a society, care for the dignity of women and their children.”
Poor or low-income woman represent 75% of abortion patients, according to the Guttmacher Institute, a research group that supports abortion rights.
Since Roe was decided, there have been 1,327 abortion restrictions enacted in the United States. In 2021 alone, there were 97 new restrictions, which represents the highest number in one year since Roe was decided. Additionally, according to Guttmacher, there are 10 states with so-called trigger laws already on the books, which would immediately ban abortion if Roe v. Wade were overruled.
“In the next year, if Roe is overturned then you are looking at basically the South, the Plains states and the Midwest where abortion access would be dramatically reduced because of bans that have already been put in place but are right now blocked by courts,” said Elizabeth Nash, a state policy analyst at Guttmacher.
According to Guttmacher, five states are currently left with one clinic: Mississippi, Missouri, North Dakota, South Dakota and West Virginia.
Brewer’s clinic is the last one left in Mississippi and she hopes the Supreme Court will invalidate the law that bars most abortions after 15 weeks. There is no exception for rape or incest.
Brewer, whose clinic is being represented in court by the Center for Reproductive Rights, has seen poverty first hand. “These women can barely afford to come here, much less go out of state,” she said.
She dismisses Mississippi’s argument that states should be able to make the decision.
“Mississippi should concentrate more on why we are the last out of the 50 states in education right now, rather than focus on a woman’s right to choose when she gets pregnant,” she said. “If they care so much about children, like they claim to, why aren’t they focused on education?”
Many believed that in her opening brief, Fitch would only ask the justices to cut back on Roe. Instead, she said the court should wipe it from the books calling the decision “egregiously wrong.”
Fitch argued that the state law at issue “rationally furthers valid interests in protecting unborn life, women’s health and the medical professions’ integrity.”
In briefs filed last week, Fitch stressed that issues such as abortion “are to be resolved by the will of the people,” where legislatures should be able to respond to medical advances, something they cannot do “in the face of flawed precedents that are anchored to decades-stale views of life and health.”
Catherine Foster, President and CEO for Americans United For Life, agrees with the state and filed a brief Thursday on behalf of 228 members of Congress who also believe that Roe should be overturned.
“When it comes to what is at stake in this case it’s really the democratic legitimacy of the Supreme Court and the judicial system,” she said in an interview and added that if Roe is overturned “almost certainly most states will be in the exact situation that they are now.”
But, she said, “It’s the right of communities across the nation to protect their citizens,” and “the precious lives of millions of America’s youngest children.”
Asked about the disparate impact on poor women, Foster responded that at 19 years old she had undergone the procedure and lived to regret her decision.
“When you don’t have the resources or the ability to choose to parent or to place your child in a loving home through adoption — then that isn’t real choice,” she added.
Role of Amy Coney Barrett
Justice Amy Coney Barrett’s vote will likely make a difference.
Upon her nomination by then-President Donald Trump, Barrett made sure to praise Ginsburg. “I have been nominated to fill Justice Ginsburg’s seat but no one will ever take her place,” she said, and added “I will forever be grateful for the path she marked and the life she led.”
But her opponents fear that she is poised to dismantle Ginsburg’s legacy.
As a law professor working for a Catholic University, Barrett made clear that she was opposed to abortion. As a lower court judge she voted twice to revisit her colleagues’ opinions that struck down abortion restrictions.
At her confirmation hearing for the high court last fall, Democrats grilled Barrett on the topic. Like most every other nominee, she said that as a justice she would leave her personal beliefs behind when considering a dispute.
“My policy views, my moral convictions, my religious beliefs do not bear on how I decide cases nor should they,” Barrett said.
In her opening statement, the former clerk to Justice Antonin Scalia revealed that she is aligned with his judicial philosophy. “Courts are not designed to solve every problem or right every wrong in our public life,” she said. “The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People.”
While it is unknown which justices provided the necessary four votes to take up next term’s challenge, it was only after Barrett joined the court that her new colleagues took up a dispute so closely tied to Roe’s core holding.
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